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DOCUMENTS 


RELATING    TO    THE 


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BOSTON: 

REPRINTED    BY    SAMUEL    N.   DICKINSON. 
1842. 


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UNIVERSITY  OF  MASSACHUSETTS 
AT  AMHERST 


UNIVERSITY  LIBRARY 

Special  Collections  &  Rare  Books 


Spec. 
Coll. 

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74 

C4 

D6 

1842 


Gift  of 
LENORE  M.   FOGEL    '70 


DOCUMENTS 


RELATING    TO    THE 


URSULINE  CONVENT 


CHARLE STOWN 


BOSTON: 

REPRINTED    BY    SAMUEL    N.   DICKINSON. 
1842. 


PREFACE. 


The  relation  of  the  owners  of  the  Ursuline  Convent  to  the  commonwealth  of 
Massachusetts  is  a  subject  which  may  well  occupy  the  public  attention.  It  involves 
a  great  principle  of  public  justice,  and  the  facts  of  the  case  present  one  of  the  gravest 
questions  that  can  engage  the  attention  of  a  free  people,  or  awaken  the  inquiries  and 
stimulate  the  exertions  of  individuals.  If,  in  the  pauses  of  political  agitation, 
leisure  and  attention  can  be  found  for  the  calm,  dispassionate  consideration  of  what 
concerns  our  highest  honor,  our  good  name,  our  abiding  interests  as  a  people  whose 
government  is  founded  and  should  be  administered  in  justice,  this,  among  other 
objects,  may  claim  our  care.  Fortunately,  it  is  the  sole  blemish  on  the  honor  of 
the  country,  for  which  we  of  Massachusetts  are  in  any  wise  peculiarly  responsible, 
or  over  which  we  have  exclusive  jurisdiction  ;  and  it  is  consolatory  to  reflect,  that, 
when  this  question  shall  have  been  met  upon  its  merits,  and  disposed  of  according  to 
its  merits,  if  no  untoward  accident  shall  befall  our  public  affairs,  Massachusetts  will 
stand  before  the  world  not  merely  as  a  model  republic,  but  as  a  state,  in  which  indi- 
vidual rights  rest  on  the  imperishable  foundations  of  both  the  power  and  the  dispo- 
sition to  be  just. 

It  is  not  proposed  here  to  argue  the  merits  of  the  question  between  the  owners  of 
the  convent  and  the  commonwealth  of  Massachusetts,  but  merely  to  state  it.  It 
will  be  convenient,  however,  to  state  first  what  the  question  is  not.  It  is  not  a 
question  in  the  smallest  degree  analogous  to  the  application  of  a  college  or  other 
literary  institution  for  aid  from  the  state  ;  and  therefore  it  is  not  to  be  answered  by 
those  arguments  which  are  commonly  deemed  a  sufficient  response  to  such  ap- 
plications. These  owners  ask  for  no  encouragement,  or  aid,  and  no  one  asks  aid  or 
encouragement  for  them.  They,  being  citizens  of  the  commonwealth,  were  possessed 
of  certain  property ;  they  paid  upon  it  all  the  taxes  assessed  by  the  laws  ;  their  right 
to  its  possession,  enjoyment,  use  and  absolute  dominion,  was  the  same  as  that  of 
every  other  citizen  to  his  property,  a  right  without  which  civil  society  does  not  and 
cannot  exist.  This  property  was  torn  from  them  and  struck  out  of  existence.  In 
any  question,  therefore,  as  to  whether  this  property  ought  to  be  replaced  by  the 
state,  a  question  grounded  on  an  alleged  omission  of  public  duty,  there  is  not  the 
most  remote  analogy  to  the  case  of  an  institution  or  individual  asking  a  gift  of  pro- 


perty  entirely  anew,  or  to  replace  what  has  been  destroyed  by  accident.  To  liken 
the  two  cases  would  be  as  correct  as  it  would  be  to  find  a  resemblance  between  a 
claim  for  damages  and  an  asking  for  alms. 

What  then  is  the  question  1  It  is:  whether,  by  force  of  the  social  compact,  there 
exists  a  duty  on  the  part  of  the  body  politic  to  protect  the  property  of  its  citizens  ; 
and,  if  that  duty  exists,  whether  it  does  not  —  in  a  case  where  protection  has  failed 
in  the  manner  and  degree  and  under  the  circumstances  peculiar  to  this  case  —  draw 
after  it  a  solemn  public  duty  to  make  reparation  of  what  has  been  destroyed  ?  In 
other  words,  the  question  is,  granting  the  duty  of  protection,  whether  that  duty  does 
not  involve  the  duty  of  indemnification,  in  a  case  of  public  violence,  breaking  forth 
in  unrestrained  fury  upon  the  citizen,  sweeping  his  property  out  of  existence,  and 
leaving  him  without  a  shadow  of  redress,  either  against  the  local  community  where 
the  outrage  occurs,  or  against  those  who  permitted  it  to  be  done. 

In  order  rightly  to  consider  this  question,  the  people  of  the  commonwealth  ought 
to  be  possessed  of  the  facts  of  the  case.  In  order  to  consider  it  fairly  and  without 
prejudice,  and  to  feel  kindly  and  impartially  towards  those  immediately  interested, 
the  people  should  know  that  impressions  once  industriously  spread  abroad,  affecting 
the  purity  of  the  institution,  are  wholly  false  ;  and  that  a  great,  undeserved  and  cruel 
wrong  —  far  exceeding  the  work  of  the  mob  itself — has  been  done  to  the  good  name 
of  individuals  and  the  honor  of  a  sect,  by  such  impressions.  In  order  to  consider 
the  question  intelligently  and  in  its  true  legal  and  moral  bearings,  the  people  should 
have  before  them  the  existing  state  of  their  own  laws  at  the  time  of  this  outrage,  the 
state  of  the  laws  at  the  present  day,  and  some  discussion  of  the  legal  doctrine  ap- 
plicable to  the  subject.  For  the  purpose  of  meeting  these  wants,  the  following 
documents  are  now  re-published. 

This  republication  is  not  made  at  the  instance  or  by  the  funds  of  Roman  Cath- 
olics. Up  to  the  time  when  this  pamphlet  will  issue  from  the  press,  there  is 
not  a  single  Roman  Catholic,  in  this  city  or  elsewhere,  who  is  aware  that  it  is 
about  to  be  published.  Indeed,  that  sect  of  our  fellow  citizens,  for  eight  years, 
have  maintained  a  dignified,  but  sorrowful  reserve,  upon  this  subject.  They  are 
not  connected  with,  or  responsible  for  any  present  movement.  The  wound 
inflicted  on  them  is  too  deep,  and  their  self  respect  is  too  great,  for  them  to  be 
active  promoters  of  any  measure  of  justice.  They  may  and  do  grieve  that  the 
commonwealth  should  be  so  tardy  in  its  action  in  this  behalf,  or  that  those 
who  guide  its  councils  should  bestow  no  thought  upon  their  wrongs ;  but  they 
are  as  silent  as  they  are  grieved,  pondering  many  things  in  their  hearts. 

This  is  as  it  should  be.  If  ever  this  act  of  mingled  grace  and  justice,  of 
sound  policy  and  clear  duty  is  to  be  performed;  if  ever  the  chaplet,  to  be  won 
from  the  admission  of  a  principle  by  a  lofty  public  virtue,  is  to  be  wreathed 
round  the  pillars  that  uphold  the  state  ;  it  is  to  be  done  by  the  spontaneous 
movement  of  the  Protestant  people  of  this  commonwealth,  in  kind,  large  and 
elevated  feeling  towards  their  Catholic  brethren. 

It  is  proper  also  to  say,  that  no  political  party  is  connected  with  or  responsi- 
ble for  this  republication.  This  too  is  right  and  fortunate.  The  means  of  repub- 
lishing these  documents  have  been  furnished   by  benevolent  and   public  spirited 


Protestant  citizens  of  all  parties,  who  have  no  object  to  gain  thereby,  other  than 
the  interests  of  truth,  justice,  mercy  and  the  public  honor. 

The  first  of  the  documents  contained  in  this  pamphlet,  consists  of  a  report 
made  by  a  committee  of  the  citizens  of  Boston,  after  an  investigation  of  three 
weeks,  commencing  on  the  day  after  the  riot.  It  contains  all  the  facts  attending 
the  outrage,  and  all  the  facts  necessary  to  place  in  the  clearest  light  the  moral 
character  of  the  institution.  It  is  quite  improbable  that  such  a  committee,  em- 
bracing eminent  lawyers  accustomed  to  the  scrutiny  of  evidence,  and  men  of  other 
pursuits  of  the  highest  intelligence,  accustomed  to  the  weighing  of  testimony, 
after  examining  more  than  a  hundred  and  forty  witnesses,  should  have  been  de- 
ceived in  any  essential  fact.  It  is  equally  impossible  that  such  men  should  have 
placed  their  signatures  to  a  publication  intended  to  mislead  the  public.  That  it  has 
not  at  this  day  been  found  to  have  done  all  its  work  of  vindication,  is  owing  to  the 
fact  of  its  limited  circulation.  The  report  was  never  successfully  contradicted,  in 
any  material  point.  Other  publications  have  indeed  left  their  natural  effect  of  preju- 
dices in  the  public  mind.  But  the  day  has  come  when  these  prejudices  ought  to  be 
dispelled.  It  concerns  the  honor  and  the  intelligence  of  the  people  of  Massachusetts, 
that  they  do  not  suffer  a  continued  injustice  to  be  visited  upon  persons  as  innocent 
of  wrong  and  as  worthy  of  the  blessings  of  free  institutions  as  themselves. 

The  other  document  contained  in  this  pamphlet,  is  a  report  made  to  the 
House  of  Representatives,  at  the  winter  session  of  1842.  It  was  never  acted 
upon,  having  been  purposely  allowed  by  the  chairman  who  made  it,  to  remain 
upon  the  table  for  future  consideration. 

Boston,  November  1st,  1842. 


BURNING  OF  THE  URSULINE  CONVENT. 


At  a  public  meeting  of  the  citizens  of  Boston,  held  at  Faneuil  Hall,  on  the 
12th  day  of  August,  1834,  the  following  Resolutions  were  unanimously  adopted. 

Resolved,  That  in  the  opinion  of  the  citizens  of  Boston,  the  late  attack  on  the 
Ursuline  Convent  in-Charlestown,  occupied  only  by  defenceless  females,  was  a 
base  and  cowardly  act,  for  which  the  perpetrators  deserve  the  contempt  and 
detestation  of  the  community. 

Resolved,  That  the  destruction  of  property  and  danger  of  life  caused  thereby, 
calls  loudly  on  all  good  citizens  to  express  individually  and  collectively,  the 
abhorrence  they  feel  of  this  high-handed  violation  of  the  laws. 

Resolved,  That  we,  the  Protestant  citizens  of  Boston,  do  pledge  ourselves, 
collectively  and  individually,  to  unite  with  our  Catholic  brethren  in  protecting 
their  persons,  their  property,  and  their  civil  and  religious  rights. 

Resolved,  That  the  Mayor  and  Aldermen  be  requested  to  take  all  measures, 
consistent  with  law,  to  carry  the  foregoing  resolution  into  effect,  and  as  citi- 
zens, we  tender  our  personal  services  to  support  the  laws  under  the  direction 
of  the  city  authorities. 

Resolved,  That  the  Mayor  be  requested  to  nominate  a  committee  from  the 
citizens  at  large,  to  investigate  the  proceedings  of  the  last  night,  and  to  adopt 
every  suitable  mode  of  bringing  the  authors  and  abettors  of  this  outrage  to 
justice. 

The  following  committee  was  nominated  by  the  Mayor : 

H.  G.  Otis,  John  D.  Williams,  James  T.  Austin,  Henry  Lee,  James  Clark, 
Cyrus  Alger,  John  Henshaw,  Francis  J.  Oliver,  Mark  Healy,  Charles  G.  Loring, 
C.  G.  Greene,  Isaac  Harris,  Thomas  H.  Perkins,  John  Rayner,  Henry  Gassett, 
Daniel  D.  Brodhead,  Noah  Brooks,  H.  F.  Baker,  Z.  Cook,  Jr.,  George  Darracott, 
Samuel  Hubbard,  Henry  Farnam,  Benjamin  F.  Hallett,  John  K.  Simpson,  John 
Cotton,  Benjamin  Rich,  William  Sturgis,  Charles  P.  Curtis. 

On  motion  of  Mr.  George  Bond,  the  committee  of  twenty-eight  were  requested 
to  consider  the  expediency  of  providing  funds  to  repair  the  damage  done  to 
the  Convent,  &c. 

On  motion  of  John  C.  Park,  Esq.,  it  was 

Resolved,  That  the  Mayor  be  authorized  and  requested  to  offer  a  very  liberal 
reward  to  any  individual  who,  in  case  of  further  excesses,  will  arrest  and  bring 
to  punishment  a  leader  in  such  outrages. 

THEODORE  LYMAN,  Jr.,  Chairman. 
Zebedee  Cook,  Jr.,  Secretary. 


REPORT 


OF  THE  COMMITTEE,  RELATING  TO  THE  DESTRUCTION  OF  THE 
URSULINE  CONVENT,  AUGUST  11,  1QgUfcy«, 


The  Committee  appointed  at  Faneuil  Hall,  at  the  meeting  on  the 
12th  tilt,  to  investigate  the  recent  outrages  in  Charlestown,  and  take 
measures  for  bringing  the  perpetrators  to  justice,  and  also  to  consider 
the  expediency  of  providing  funds  to  repair  the  damage  done  to  the 
Convent,  believing  that  an  account  of  their  proceedings  and  of  the 
results  of  their  inquiries  may  be  acceptable,  respectfully 

REPORT : 

That,  upon  the  second  day  succeeding  that  of  their  appointment, 
they  entered  upon  the  discharge  of  their  duties,  and  continued  in 
session  every  day  from  9  A.  M.  to  sunset,  with  the  intermission  of 
Sundays  and  the  usual  time  for  dining,  until  the  27  th  ult,  when  the 
afternoon  sittings  were  dispensed  with. 

The  most  active  and  vigorous  measures  within  the  scope  of  their 
authority,  were  adopted  to  obtain  intelligence,  and  have  been  perse- 
vered in  tiU  the  present  time  —  sub-committees  being  frequently  des- 
patched to  various  parts  of  the  city  and  to  the  neighboring  towns 
and  messengers  constantly  employed  to  obtain  the  attendance  of  such 
persons  as  were  supposed  capable  of  giving  useful  information. 

The  number  of  which  the  committee  was  originally  composed 
being  insufficient  for  the  discharge  of  its  various  and  arduous  duties, 
and  some  of  the  gentlemen  appointed  having  declined  the  service, 
the  aid  of  several  others  was  requested,  who  have  been  among  the 
most  efficient  of  its  members. 

The  committee  being  invested  with  no  power  to  compel  appear- 
ance, or  take  examinations  under  oath,  were  careful  to  notify  those 
who  came  before  them,  that  their  attendance  and  statements  were 
entirely  voluntary ;  and  that  no  use  would  be  made  of  the  information 
they  might  give,  unless  it  should  be  thought  necessary  to  summon 
them  as  witnesses  before  a  magistrate  or  judicial  tribunal.* 

*  This  latter  assurance  was  given  to  most  of  the  persons  who  appeared  in  the  committee  room  in 
order  to  remove  the  apprehensions  entertained  by  them  or  some  of  them,  for  their  personal  safety  if 
it  should  become  known  to  the  rioters  or  their  friends,  that  they  had  given  information  to  the  commit- 
tee, inculpating  persons  concerned  in  the  riot. —  Sub-Committee. 


8 

In  this  manner  more  than  one  hundred  and  forty  persons,  and  some 
of  them  repeatedly,  have  been  examined,  and  much  important  infor- 
mation has  been  procured,  which  has  led  to  the  arrest  of  several 
individuals,  and  constituted  important  additions  to  the  evidence  upon 
which  other  arrests  have  been  made ;  and,  it  is  hoped,  will  lead  to 
further  disclosures.  But  it  is  obvious  that  any  statement  of  the  testi- 
mony would,  at  this  time,  be  improper. 

The  whole  number  of  arrests  and  commitments  made  by  the  efforts 
of  the  Charlestown  committee  and  magistrates,  and  of  this  committee, 
is  thirteen ;  of  which,  eight  are  upon  charges  of  a  capital  nature. 

It  appeared  immediately  upon  commencing  the  investigation,  that 
the  destruction  of  the  convent  might  be  attributed  primarily  to  a 
widely  extended  popular  aversion,  founded  in  the  belief,  that  the  es- 
tablishment was  obnoxious  to  those  imputations  of  cruelty,  vice,  and 
corruption,  so  generally  credited  of  similar  establishments  in  other 
countries,  and  was  inconsistent  with  the  principles  of  our  national 
institutions,  and  in  violation  of  the  laws  of  the  commonwealth ; 
and  which  aversion  in  the  minds  of  many,  had  been  fomented  to 
hatred,  by  representations  injurious  to  the  moral  reputation  of  the 
members  of  that  community,  attributing  to  them  impurity  of  conduct, 
and  excessive  cruelties  in  their  treatment  of  each  other,  and  of  the 
pupils ;  and  denunciatory  of  the  institution,  as  hostile,  in  its  character 
and  influences,  alike  to  the  laws  of  God  and  man  :  and  also  by  reports 
that  one  of  the  sisterhood,  Mrs.  Mary  John,  formerly  Miss  Elizabeth 
Harrison,  after  having  fled  from  the  convent  to  escape  its  persecu- 
tions, and  then  been  induced  by  the  influence  or  threats  of  Bishop 
Fenwick  to  return,  had  been  put  to  death,  or  secretly  imprisoned,  or 
removed ;  so  that  her  friends  could  neither  see  nor  obtain  information 
concerning  her.  These  assertions  and  reports  were  not  only  preva- 
lent in  this  city  and  its  vicinity,  but,  the  committee  have  reason  to 
believe,  pervaded  many  distant  parts  of  the  commonwealth,  and  have 
extended  into  other  states ;  affording  a  monitory  lesson  of  the  extent 
and  excitability  of  public  credulity,  when  in  accordance  with  popular 
prejudice. 

It  was  doubtless  under  the  influence  of  these  feelings  and  impres- 
sions, that  some  of  the  conspirators  were  led  to  design  the  destruction 
of  the  convent,  and  to  avail  themselves  of  the  aid  of  those  miscreants, 
who,  actuated  by  the  love  of  violence,  or  the  hope  of  plunder,  were 
the  foremost  in  the  perpetration  of  the  outrage. 

The  committee,  therefore,  considered  it  an  important  part  of  their 
duty,  to  make  faithful  inquiry  into  the  character  of  the  institution,  and 
into  the  truth  of  the  assertions  and  reports  of  such  fatal  influence : 
believing  that  authentic  information  upon  these  subjects  was  de- 
manded in  justice  to  the  sufferers  and  the  public;  and  might  be 
instrumental  in  leading  to  the  detection  of  those  who  had  instigated 
or  aided  in  the  commission  of  the  crime ;  and  who,  it  is  feared,  are 
still,  in  great  measure,  sheltered  by  the  prevalence  of  the  impressions 
above  referred  to. 

The  committee  are  not  influenced  in  communicating  the  result  of 
this  inquiry,  by  any  impression  that  the  truth  of  the  imputations,  if 


established,  would  have  constituted  any  justification  of  the  icrong ; 
being  entirely  of  opinion,  that  whatever  might  have  been  the  charac- 
ter of  the  institution,  or  the  deportment  of  its  members,  they  could 
give  no  sanction  to  this  high-handed  violation  of  the  lav:.  Still  less  can 
it  be  supposed  that  they  have  any  disposition  to  aid  in  the  dissemina- 
tion of  the  Catholic  faith,  being  unanimously  opposed  to  its  character- 
istic tenets. 

But  having  discovered  the  existence  of  the  prepossessions  so 
generally  prevalent,  and  perceiving  how  much  they  affected  the  dis- 
position of  those  called  to  give  testimony,  and  how  often  they  were 
referred  to  as  a  palliation  of  the  offence,  they  have  felt  imperatively 
bound  by  a  regard  for  truth,  by  a  just  appreciation  as  they  hope  of  the 
candor  of  their  fellow  citizens,  and  also  by  a  sense  of  justice  to  the 
injured,  to  make  known  the  conclusions,  to  which  the  evidence  before 
them  has  irresistibly  led.  And  in  doing  this,  they  are  careful  to  make 
no  statements  but  those  of  which  they  consider  themselves  to  have 
evidence  amply  sufficient  to  sustain  them,  were  they  in  question 
before  a  judicial  tribunal. 

The  institution  at  Charlestown  was  of  the  Ursuline  Order,  which 
was  first  established  in  the  year  1536,  for  the  purposes  of  administering 
relief  to  the  sick  and  the  afflicted,  and  of  superintending  the  education 
of  female  youth  ;  and  so  exemplary  had  been  the  character  and 
deportment  of  this  order  of  nuns,  and  so  extensively  beneficial  were 
their  services  in  the  cause  of  education  and  Christian  charity,  that, 
when  other  convents  were  abolished  by  many  governments  in  Eu- 
rope, these  alone  were  not  only  permitted,  but  encouraged  to  remain. 

Unlike  the  other  order  of  convents,  into  which  the  members 
repaired  for  the  avowed  purposes  of  religious  seclusion  from  the 
pleasures  and  duties  of  the  world,  and  in  which  corruptions  and 
abuses  might  be  supposed  to  exist  beyond  the  reach  of  human 
detection,  the  members  of  this  religious  community,  by  the  necessity 
of  their  order  and  by  their  vows,  devote  themselves  to  those  services 
in  the  cause  of  humanity,  which  render  them  at  all  times  subjects  of 
public  observation ;  and  expose  their  personal  deportment,  as  well  as 
the  character  of  their  institution,  to  the  strictest  scrutiny. 

However  just,  therefore,  might  be  the  popular  odium  against  an 
institution  which  secluded  its  members  from  the  occupations  and 
enjoyments  of  life,  cutting  them  off  from  the  sympathies  of  society, 
and  dooming  them  to  an  irrevocable  concealment,  into  which  the 
eye  of  friendship  and  affection  could  never  penetrate,  and  where 
suffering  might  be  without  remedy,  and  crime  without  punishment, 
there  can  be  no  rational  pretence  for  similar  feelings  towards  an 
institution,  whose  members  were  openly  engaged  in  the  most  useful 
and  elevated  offices  of  humanity  in  the  presence  of  the  world  ;  who 
had  it  in  their  power  to  leave  the  institution  at  their  pleasure  ;  and 
whose  dwelling  was  filled  with  those  who  were  not  members  of  their 
community,  and  accessible  at  proper  times  to  the  parents  and  friends 
of  its  numerous  inmates. 

The  institution  in  question   was  founded  in   the  year   1320,   by 
Doctors  Matignon  and  Cheverus,  whose  names  will  be,  in  this  com- 
2 


10 

munity,  a  sufficient  guarantee  of  its  purity  and  Christian  character, 
with  funds,  given  by  a  native  citizen  of  Boston.  By  their  invitation, 
four  ladies  of  the  Ursuline  Order,  emigrated  to  this  country  in  the 
year  1820,  and  established  themselves  at  first  in  this  city.  They 
afterwards,  in  the  year  1826,  removed  to  Charlestown,  and  occupied 
the  farm  house  at  the  foot  of  Mount  Benedict  until  the  main  building 
on  its  summit  was  finished  in  the  year  1827.  In  the  meantime  the 
reputation  of  their  seminary  was  widely  extended,  and  the  number 
of  pupils  from  all  the  New  England,  and  from  many  of  the  southern 
states,  and  the  British  provinces,  rapidly  increased ;  so  that  in  the 
year  1829,  it  was  found  necessary  to  add  two  large  wings  to  the 
building  for  their  accommodation. 

The  number  of  nuns  has  varied  at  different  times  from  four  to  ten, 
each  of  whom  performed  a  distinct  part  in  the  care  of  the  establishment, 
or  the  education  of  the  children.  For  admission  as  a  member  of  this 
community,  the  candidate,  after  a  preliminary  period  of  probation, 
enters  upon  a  noviciate  for  two  years  by  taking  the  white  veil,  in 
order  to  give  her  ample  time,  after  full  experience  of  the  discipline, 
duties  and  principles  of  the  institution,  to  determine  whether  they  are 
such  as  she  shall  be  solicitous  to  enter  upon  for  life.  During  this 
period  no  restraints  by  religious  vows  or  otherwise  are  imposed  to 
prevent  her  secession  from  the  establishment,  and  the  committee 
have  plenary  evidence  from  those  who  have  thus  seceded,  of  their 
freedom  in  this  respect. 

Upon  receiving  the  black  veil,  the  religious  vow  is  taken  of  devotion 
to  the  institution  for  life  ;  but  even  then  no  forcible  means  could  be 
exercised  to  detain  any  one,  who  might  choose  to  return  to  the  world; 
and  their  legal  right  to  do  so,  is  perfectly  well  understood  by  every 
member  of  that  community. 

No  penances  or  punishments  are  ever  forcibly  enforced  or  inflicted ; 
they  are  not  only  always  voluntary,  but  can  never  even  thus  take 
place,  but  by  permission  of  the  head  of  the  order,  which  is  not  granted 
unless  the  applicant  be  in  good  health. 

The  committee  do  not  mean  to  be  understood,  as  believing,  that 
there  may  not  be  a  mental  subjection,  not  less  effectual  upon  the 
individuals  concerned  than  one  created  by  external  force  ;  but  they 
consider  this  a  matter  of  religious  faith,  resting  entirely  between 
themselves  and  the  only  Being  to  whom  they  are  accountable  ;  and 
one  which  neither  renders  them  amenable  to  public  law,  nor  in  any 
degree  justly  obnoxious  to  popular  odium. 

Some  of  those,  who  after  entering  upon  their  noviciate  seceded 
from  the  convent,  still  retain  the  warmest  affection  for  its  members, 
and  bear  willing  testimony  to  their  unvaried  kindness  and  the  purity 
and  excellence  of  their  deportment. 

The  number  of  pupils  has  varied  from  forty  to  sixty,  during  each 
of  the  past  five  years,  being  for  the  most  part  children  of  those  among 
the  most  reputable  families  in  the  country  of  various  religious  deno- 
minations, (the  number  of  Catholics  never  exceeding  ten  at  any  one 
time,)  and  wholly  unrestrained  in  their  communications  with  their 
friends  concerning  all  that  transpired  in  the  seminary. 


11 

No  means  were  taken  to  influence  or  affect  their  religious  opinions; 
their  attendance  upon  the  services  in  the  chapel  was  voluntary,  never 
exacted.  The  only  religious  services  forming  a  part  of  the  system, 
were  morning  and  evening  prayers,  common  to  all  christians,  and 
discourses  by  the  Bishop,  on  Sundays,  upon  the  practical  truths  and 
religious  duties  which  are  peculiar  to  no  sect.  Nor  can  it  be  ascertained 
that  any  pupil  placed  under  their  charge  for  the  purposes  of  education, 
has  been  converted  from  any  other  to  the  Catholic  faith,  or  induced  to 
become  a  member  of  the  community* 

Of  these  facts,  and  of  the  truly  maternal  kindness  with  which  the 
children  were  uniformly  treated,  and  of  their  filial  affection  to  the 
ladies  of  the  establishment,  and  of  the  entire  confidence  and  respect 
to  which  they  are  entitled,  the  committee  have  the  fullest  assurances 
both  from  children  and  parents.  Nor  can  it  be  believed  that,  if  undue 
severity  had  been  exercised  upon  the  pupils  ;  or  harshness,  or  cruelty 
had  been  inflicted  upon  any  member  of  the  community  ;  or  if  any 
thing  inconsistent  with  purity  of  deportment  had  existed,  it  could 
have  escaped  the  scrutinizing  observation  of  so  many  inquisitive  and 
active  minds ;  or  could  fail  to  be  communicated  to  their  friends  ;  and 
still  less  can  it  be  believed,  that  upon  a  disclosure  of  this  sort,  a  father 
or  mother  could  be  found  who  would  suffer  a  daughter  to  remain 
under  their  roof. 

In  pursuing  their  inquiries  into  the  truth  of  the  injurious  repre- 
sentations and  reports  above  referred  to,  members  of  the  committee 
have  had  an  interview  with  the  young  lady  upon  whose  authority 
they  were  generally  supposed  to  rest.  She  entirely  disclaimed  most 
of  those  passing  under  the  sanction  of  her  name,  and  particularly  all 
affecting  the  moral  purity  of  the  members  of  the  institution,  or  the  ill 
treatment  of  the  pupils  under  their  care. 

As  to  the  reports  in  relation  to  the  supposed  murder  or  secretion  of 
Miss  Harrison,  it  is  only  necessary  for  the  committee  to  recapitulate 
the  facts  already  before  the  public,  with  the  further  assurance  that 
the  relation  has  been  personally  confirmed  by  her  to  some  of  them,  who 
were  well  acquainted  with  her  before  the  destruction  of  the  convent,  and 
have  repeatedly  seen  and  conversed  with  her  since. 

This  female,  a  native  of  Philadelphia,  entered  upon  her  noviciate 
in  the  institution  in  the  year  1822,  and  became  a  member,  in  full 
communion,  in  the  year  1824,  after  knowledge  and  experience  of  the 
principles  and  rules  of  it,  and  of  the  manners  and  dispositions  of  its 
members.  She  has  one  brother  and  a  brother-in-law  living  in  this 
city,  with  whom  she  has  constant  intercourse,  and  who  have  been 
accustomed  to  visit  her  at  the  convent  at  pleasure. 

*  It  is  some  proof  of  the  estimation  in  which  this  School  wa«  held  by  the  Protestant  community,  that 
of  forty-five  pupils  only  fnur  were  Roman  Catholics.  Tho  pupils  resident  at  the  Institution  at  the  time 
it  was  destroyed  were  from  Boston,  Cambridge,  Charleslown,  Watertown,  Gloucester,  Brighton,  Mil- 
ton, and  Brookline,  in  this  State  ;  from  Bath,  Maine  ;  Quebec,  Canada;  Savannah,  G.i.:  New  Orleans, 
La.;  and  Porto  Rico,  South  America.  Among  them  were  daughters  of  Samuel  K.  Williams,  and  Hall 
J.  How.  Esquires,  of  Boston  ;  of  the  Hon.  S.  P.  P.  Fay,  of  Cambridge,  Judge  of  Prob.ite  of  the  County 
of  Middlesex  ;  of  the  Hon.  Levi  Thaxter,  of  Watertown  ;  of  the  late  John  Parkman,  Esq.,  ol  Brighton  ; 
of  the  lite  Alphonso  Mason,  and  grand  daughters  of  John  Mason,  Esq.,  of  Gloucester  ;  and  of  the  Lamar 
family,  of  Georgia .  and  of  many  other  families  of  the  highest  respectability,  whose  religious  opinions 
are  as  firmly  opposed  to  the  tenets  of  Catholicism  as  those  of  any  person  in  the  community.  The  testi- 
mony of  the  Committee  shows  conclusively  that  their  confidence  in  the  conductors  of  the  School  was 
fully  justified. 


12 

She  is  the  teacher  of  music  in  the  seminary,  and  for  some  time 
before  the  28th  day  of  July,  had  been  engaged  in  giving  fourteen 
lessons  per  day,  of  at  least  forty-five  minutes  each,  and  by  the  con- 
finement and  exertion  of  these  arduous  efforts,  had  impaired  her 
health,  and  was  suffering  under  a  nervous  excitement  or  fever,  which, 
on  that  day,  increased  to  a  delirium  ;  under  the  influence  of  which, 
unconsciously  to  herself,  she  left  the  house  and  proceeded  to  that  of 
Mr.  Edward  Cutter,  in  the  immediate  neighborhood,  whence,  at  her 
request,  she  was  carried  to  the  residence  of  Mr.  Cotting,  in  West 
Cambridge. 

On  the  morning  after  her  departure,  her  brother,  Mr.  Thomas 
Harrison  of  this  city,  went  to  her,  and  found  her  surprised  at  the  step 
she  had  taken.  At  her  request  he  accompanied  Bishop  Fenwick  there 
in  the  afternoon,  and  she  gladly  returned  with  them  to  the  convent ; 
where  she  was  welcomed  by  her  anxious  friends,  and  remained  until 
the  night  of  the  outrage,  receiving  from  them  every  kindness  and 
attention  which  her  situation  required. 

The  story  of  her  flight  and  of  her  alleged  forcible  return,  and  subse- 
quent death  or  removal,  had,  however,  obtained  such  currency  and 
was  so  generally  believed  in  Charlestown  and  the  neighboring 
towns,  that  the  selectmen  of  that  place  considered  it  their  duty  to 
investigate  the  affair ;  and  upon  application  to  the  Superior,  a  time  of 
their  own  appointment  was  fixed  by  the  Board  to  visit  the  convent. 
Accordingly  on  the  11th  August,  at  3  P.  M.,  they  repaired  there  in  a 
body,  and  were  received  by  Miss  Harrison,  the  nun  who  was  supposed 
to  be  murdered  or  secreted,  and  were,  by  her  alone,  conducted 
throughout  the  establishment,  into  every  room  and  closet,  from  the 
cellar  to  the  cupola,  inclusive,  and  were  answered  every  inquiry  which 
they  saw  fit  to  make. 

The  result  of  this  examination  was  their  entire  satisfaction  "that 
every  thing  was  right,"  and  they  proceeded  from  the  building  to  the 
house  of  one  of  their  number  in  the  neighborhood,  to  prepare  a  cer- 
tificate to  that  effect,  to  be  published  in  the  papers  of  the  following  day. 

The  committee  have  been  unable  to  find  any  report  in  circulation 
injurious  to  the  reputation  of  the  members  of  the  community,  which 
may  not  be  traced  to  one  of  the  above  sources,  or  which  has  any  other 
apparent  foundation. 

And  having  thus  given  to  the  public  an  authentic  statement  of  all 
the  facts  affecting  the  character  and  reputation  of  the  institution  and 
its  members,  so  far  as  they  have  come  to  their  knowledge,  and  of 
which  they  have  abundant  proof,  the  committee  have  acquitted  them- 
selves of  this  part  of  their  duty  and  leave  to  their  fellow  citizens  the 
question,  whether  this  institution  was  in  any  degree  obnoxious  to  the 
fatal  imputations  so  generally  circulated  and  believed,  or  to  the  public 
odium  so  unfortunately  prevalent. 

For  some  time  previous  to  the  11th  day  of  August,  the  excitement 
of  the  public  mind  had  become  so  great  in  Charlestown,  that  the  des- 
truction of  the  convent  was  the  subject  of  frequent  threats  and  con- 
versation, and  on  the  preceding  day  inflammatory  hand-bills  had  been 
posted. 


13 

There  can  be  no  doubt  that  a  conspiracy  had  been  formed,  extend- 
ing into  many  of  the  neighboring  towns  ;  but  the  committee  are  of 
opinion  that  it  embraced  very  few  of  respectable  character  in  society; 
though  some  such  may  perhaps  be  accounted  guilty  of  an  offence,  no 
less  heinous,  morally  considered,  in  having  excited  the  feelings  which 
led  to  the  design,  or  countenanced  and  instigated  those  engaged  in  its 
execution.  And  there  is  reason  to  believe,  that  those  who  had  deter- 
mined on  the  destruction  of  the  building,  were  induced  to  an  earlier 
accomplishment  of  their  purpose  than  was  originally  intended,  by  a 
publication  in  the  Mercantile  Journal  headed  "  Mysterious,"  (after- 
wards copied  into  other  papers,)  which,  it  appears,  was  inserted  by 
the  news-gatherer  of  that  journal,  without  other  authority  than  the 
idle  gossip  then  prevalent  in  Charlestown,  (the  falsehood  of  which 
might  have  been  ascertained  at  any  time  by  a  walk  of  a  few  minutes 
from  the  office  to  the  proper  place  of  inquiry :)  and  also  by  a  knowl- 
edge that  the  selectmen  had  made  their  investigation,  and  the  ap- 
prehension that  a  publication  of  its  result  might,  by  allaying  the 
principal  cause  of  the  excitement,  prevent  its  execution. 

Soon  after  sunset  several  persons  were  seen  at  the  gate  of  the 
avenue  leading  from  the  road  to  the  convent,  and  on  being  inquired 
of  concerning  the  reason  of  being  there,  gave  evasive  and  impertinent 
answers ;  but  there  was  nothing  in  their  language  or  numbers  which 
led  to  the  belief  that  a  serious  riot  was  to  be  apprehended.  Imme- 
diate information,  however,  was  given  of  the  fact  to  one  or  more  of 
the  selectmen,  and  assurances  were  made  in  reply  that  no  danger 
could  possibly  be  anticipated. 

Soon  after  9  o'clock,  the  rioters  began  to  assemble  in  considerable 
numbers,  arriving  on  foot  and  in  wagons  from  different  quarters ;  and 
a  party  of  about  forty  or  fifty  proceeded  to  the  front  of  the  building, 
using  violent  and  threatening  language.  They  were  addressed  by  the 
lady  at  the  head  of  the  establishment,  who,  desiring  to  know  their 
wishes,  was  replied  to  that  they  wanted  to  enter  and  see  the  person 
alleged  to  be  secreted.  She  answered,  that  their  selectmen  had  that 
day  visited  the  house,  and  could  give  them  satisfactory  information, 
and  that  any  of  them  on  calling  the  next  day  at  a  suitable  hour,  might 
see  for  themselves ;  at  the  same  time  remonstrating  against  such 
violation  of  the  peace  and  of  the  repose  of  so  many  children  of  their 
most  reputable  citizens. 

Shortly  afterwards,  the  same,  or  another  party,  with  increased  num- 
bers, approached  the  convent,  using  still  more  threatening  and  much 
gross  and  indecent  language.  The  lady  above  referred  to  again  ad- 
dressed them  in  terms  of  remonstrance  and  reproach,  and  desired  to 
know  whether  none  of  their  selectmen  were  present.  Some  of  them 
replied  that  one  was  there,  mentioning  his  name.  He  then  came 
forward  and  announced  his  presence,  stating  that  he  was  there  for  the 
purpose  of  defending  her.  She  inquired  whether  he  had  procured 
the  attendance  of  any  others  of  the  Board ;  and  upon  being  answered 
in  the  negative,  replied  that  she  would  not  trust  the  establishment  to 
his  protection,  and  that  if  he  came  there  to  protect  them,  he  should 
show  it  by  taking  measures  to  disperse  the  mob. 


14 

It  appears  from  various  testimony  that  he  did  attempt  to  dissuade 
the  rioters  from  their  design,  by  assurances  that  the  selectmen  had 
seen  the  nun  who  was  supposed  to  have  been  secreted,  and  that  the 
stories  reported  concerning  her  were  untrue.  But  his  assertions  drew 
forth  only  expressions  of  distrust  and  insult.  The  mob  continued 
upon  the  ground  with  much  noise  and  tumult,  and  were  in  that  state 
left  by  this  magistrate,  who  returned  home  and  retired  to  bed. 

At  about  eleven  o'clock,  a  bonfire  was  kindled  on  the  land  of  Alvah 
Kelly,  adjoining  that  of  the  eastern  boundary  of  the  convent,  and 
distant  about  two  hundred  and  seventy  yards  from  the  building,  the 
fences  of  which  were  taken  for  the  purpose.  This  is  believed  to  have 
been  a  concerted  signal  for  the  assembling  of  all  concerned  in  the  plot. 

The  bells  were  then  rung  as  for  an  alarm  of  fire,  in  Charlestown 
and  in  this  city,  and  great  multitudes  arrived  from  all  quarters.  Upon 
this  alarm,  the  magistrate  above  mentioned  arose  and  proceeded  to 
procure  the  attendance  of  others  of  the  selectmen.  In  the  mean 
time  the  Charlestown  engines  and  some  from  Boston  had  arrived, 
one  of  the  latter  of  which,  passing  those  of  Charlestown,  which  had 
halted  opposite  the  bonfire,  immediately  proceeded  into  the  avenue 
leading  to  the  convent,  where  her  arrival  was  greeted  with  a  shout 
from  some  of  the  rioters  upon  the  hill  and  among  the  shrubbery,  many 
of  whom  seizing  hold  of  the  rope,  proceeded  with  her  up  the  avenue, 
around  the  circular  walk  to  the  front  of  the  building,  when  the 
attack  was  instantly  commenced  by  the  breaking  of  fences,  and  the 
hurling  of  stones  and  clubs  against  the  windows  and  doors.  Upon 
this,  the  engine,  by  the  order  of  its  commander,  was  immediately 
carried  down  into  the  road  and  stationed  opposite  the  gate,  where  it 
remained  during  the  night.* 

At  the  time  of  this  attack  upon  the  convent,  there  were  within  its 
walls,  about  sixty  female  children  and  ten  adults ;  one  of  whom  was 
in  the  last  stages  of  pulmonary  consumption,  another  suffering  under 
convulsion  fits,  and  the  unhappy  female,  who  had  been  the  immediate 
cause  of  the  excitement,  was  by  the  agitations  of  the  night  in  raving 
delirium. 

No  warning  was  given  of  the  intended  assault,  nor  could  the  mis- 
creants, by  whom  it  was  made,  have  known  whether  their  missiles 
might  not  kill  or  wound  the  helpless  inmates  of  this  devoted  dwelling. 
Fortunately  for  them,  cowardice  prompted  what  mercy  and  manhood 
denied :  after  the  first  attack,  the  assailants  paused  awhile  from  the 
fear  that  some  secret  force  was  concealed  in  the  convent  or  in  ambush 
to  surprise  them ;  and  in  this  interval  the  governess  was  enabled  to 
secure  the  retreat  of  her  little  flock  and  terrified  sisters  into  the  gar- 
den. But  before  this  was  fully  effected,  the  rioters,  finding  they  had 
nothing  but  women  and  children  to  contend  against,  regained  their 
courage,  and  ere  all  the  inmates  could  escape,  entered  the  building. 

It  appears  that  during   these  proceedings,   the   magistrate  above 

*  Most  of  the  members  of  this  company  have  been  before  the  committee,  and  deny  any  previous 
knowledge  of  a  design  to  de-troy  the  convent,  or  any  participation  ill  the  riot ;  and  it  has  been 
stated  in  the  public  prints,  that  the  examining  magistrates  of  Charlestown  expressed  their  opinion 
that  this  company  stood  fully  acquitted  of  all  concern  in  it. 


15 

referred  to,  with  another  of  the  selectmen,  had  arrived  and  entered 
the  convent  with  the  rioters,  for  the  purpose,  as  they  state,  of  assist- 
ing its  inmates.  The  rnob  had  now  full  possession  of  the  house,  and 
loud  cries  were  heard  for  torches  or  lights.  One  of  the  magistrates 
in  question  availed  himself  of  this  cry  to  deter  the  rioters  from  firing 
the  building,  by  stating,  that  if  lights  were  brought  they  might  be 
detected. 

Three  or  four  torches  which  were,  or  precisely  resembled  engine 
torches,  were  then  brought  up  from  the  road ;  and  immediately  upon 
their  arrival,  the  rioters  proceeded  into  every  room  in  the  building, 
rifling  every  drawer,  desk  and  trunk  which  they  found,  and  breaking 
up  and  destroying  all  the  furniture,  and  casting  much  of  it  from  the 
windows  ;  sacrificing  in  their  brutal  fury,  costly  piano  fortes  and  harps, 
and  other  valuable  instruments  ;  the  little  treasures  of  the  children, 
abandoned  in  their  hasty  flight;  and  even  the  vessels  and  symbols  of 
christian  worship. 

After  having  thus  ransacked  every  room  in  the  building,  they  pro- 
ceeded with  great  deliberation,  about  one  o'clock,  to  make  preparation 
for  setting  fire  to  it.  For  this  purpose,  broken  furniture,  books,  cur- 
tains and  other  combustible  materials,  were  placed  in  the  centre  of 
several  of  the  rooms ;  and,  as  if  in  mockery  of  God  as  well  as  of  man, 
the  Bible  was  cast,  with  shouts  of  exultation,  upon  the  pile  first 
kindled ;  and  as  upon  this  were  subsequently  thrown  the  vestments 
used  in  religious  service,  and  the  ornaments  of  the  altar,  these  shouts 
and  yells  were  repeated.  Nor  did  they  cease  until  the  Cross  was 
wrenched  from  its  place,  and  cast  into  the  flames,  as  the  final  triumph 
of  this  fiend-like  enterprise. 

But  the  work  of  destruction  did  not  end  here.  Soon  after  the  con- 
vent was  in  flames,  the  rioters  passed  to  the  library,  or  bishop's 
lodge,  which  stood  near,  and  after  throwing  the  books  and  pictures 
from  the  windows,  a  prey  to  those  without,  fired  that  also. 

Some  time  afterwards  they  proceeded  to  the  farm-house,  formerly 
occupied  as  the  convent,  and  first  making  a  similar  assault  with 
stones  and  clubs  upon  the  doors  and  windows,  in  order  to  ascertain 
whether  they  had  any  thing  to  fear  from  persons  within,  the  torches 
were  deliberately  applied  to  that  building ;  and,  unwilling  to  leave 
one  object  connected  with  the  establishment  to  escape  their  fury, 
although  the  day  had  broken,  and  three  buildings  were  then  in  flames 
or  reduced  to  ashes,  the  extensive  barn,  with  its  contents,  was  in  like 
manner  devoted  to  destruction.  And  not  content  with  all  this,  they 
burst  open  the  tomb  of  the  establishment,  rifled  it  of  the  sacred  ves- 
sels there  deposited,  wrested  the  plates  from  the  coffins,  and  exposed 
to  view  the  mouldering  remains  of  their  tenants. 

Nor  is  it  the  least  humiliating  feature  in  this  scene  of  cowardly 
and  audacious  violation  of  all  that  man  ought  to  hold  sacred  and  dear, 
that  it.  was  perpetrated  in  the  presence  of  men  vested  with  authority, 
and  of  multitudes  of  our  fellow  citizens,  while  not  one  arm  was  lifted 
in  the  defence  of  helpless  women  and  children,  or  in  vindication  of 
the  violated  laws  of  God  and  man.  The  spirit  of  violence,  sacrilege, 
and  plunder,  reigned  triumphant.     Crime  alone  seemed  to  confer 


16 

courage ;  while  humanity,  manhood,  and  patriotism,  quailed,  or  stood 
irresolute  and  confounded  in  its  presence. 

The  committee  are  satisfied  upon  evidence  before  them,  of  what  it 
would  indeed  be  injustice  to  many  of  their  fellow  citizens  to  doubt, 
that  great  numbers  of  those  present  were  indignant  spectators  of  these 
scenes,  and  would  gladly  have  aided  in  the  defence  of  the  convent 
and  arrest  of  the  rioters,  had  any  attempt  been  made  by  either  of  the 
magistrates  or  engineers  of  the  fire  department  of  Charlestown,  who 
were  present,  or  by  an  engine  company,  or  any  person  having,  or 
assuming  to  have,  authority  to  rally  them  for  that  purpose.  But  no 
voice  of  authority  was  heard,  and  no  remonstrance,  but  that  of  timidity, 
in  effect  giving  courage  to  the  assailants. 

Nor  has  any  other  satisfactory  account  been  suggested,  why  the 
mob  was  not  arrested  in  its  career,  by  the  great  multitudes  by  which 
it  was  surrounded,  than  the  supposition  that,  from  the  omission  of 
magisterial  interference,  doubt  and  mistrust  existed,  whether  the 
work  were  not  so  sanctioned  by  popular  opinion,  or  the  connivance  of 
those  in  authority,  that  resistance  would  be  hopeless. 

The  fact  that  the  dwelling  of  inoffensive  females  and  children, 
guiltless  of  wrong  to  the  persons,  property,  or  reputation  of  others,  and 
reposing  in  fancied  security  under  the  protection  of  the  law,  has  been 
thus  assaulted  by  a  riotous  mob,  and  ransacked,  plundered,  and  burnt 
to  the  ground,  and  its  terrified  inmates,  in  the  dead  hour  of  night, 
driven  from  their  beds  into  the  fields ;  and  that  this  should  be  done 
within  the  limits  of  one  of  the  most  populous  towns  of  the  common- 
wealth, and  in  the  midst  of  an  assembled  multitude  of  spectators  ; 
that  the  perpetrators, should  have  been  engaged  for  seven  hours  or 
more  in  the  work  of  destruction,  with  hardly  an  effort  to  prevent  or 
arrest  them ;  that  many  of  them  should  afterwards  be  so  far  sheltered 
or  protected  by  public  sympathy  or  opinion,  as  to  render  the  ordinary 
means  of  detection  ineffectual ;  and  that  the  sufferers  are  entitled  to 
no  legal  redress  from  the  public,  for  this  outrage  against  their  persons 
and  destruction  of  their  property,  is  an  event  of  fearful  import  as  well 
as  of  the  profoundest  shame  and  humiliation. 

It  has  come  upon  us  like  the  shock  of  the  earthquake,  and  has  dis- 
closed a  state  of  society  and  public  sentiment  of  which  we  believe 
no  man  was  before  aware. 

If  for  the  purpose  of  destroying  a  person,  or  family,  or  institution, 
it  be  only  necessary  to  excite  a  public  prejudice,  by  the  dissemination 
of  falsehoods  and  criminal  accusations,  and  under  its  sanction  to  array 
a  mob  ;  and  there  be  neither  an  efficient  magistracy  nor  a  sense  of 
public  duty  or  justice  sufficient  for  its  prevention,  and  if  property  may 
be  thus  sacrificed  without  the  possibility  of  redress,  who  among  us  is 
safe  ? 

The  cry  may  be  of  bigotry  to-day,  and  heresy  to-morrow ;  of  pub- 
lic usurpation  at  one  time,  and  private  oppression  at  another;  or  any 
other  of  those  methods  by  which  the  ignorant,  the  factious,  and  the 
desperate,  may  be  excited  ;  and  the  victim  may  be  sacrificed  without 
protection  or  relief. 

It  is  hoped  that  the  fearful  warning  thus  suddenly  given,  enforced  as 


17 

it  is  by  similar  occurrences  in  other  states,  will  arrest  the  public  atten- 
tion ;  check  the  prevailing  disposition  to  give  credence  to  injurious 
and  calumnious  reports  ;  will  produce  throughout  the  country  a  higher 
sense  of  the  qualifications  requisite  for  magisterial  office  ;  and  lead  to 
amendments  and  improvements  of  our  laws,  which  are  thus  found 
so  sadly  defective. 

And  above  all,  may  it  rebuke  the  spirit  of  intolerance  thus  unex- 
pectedly developed,  so  fatal  to  the  genius  of  our  institutions,  and  un- 
restrained, so  fatal  to  their  continuance.  If  there  be  one  feeling  which 
more  than  any  other  should  pervade  this  country,  composing,  as  it 
were,  the  atmosphere  of  social  life,  it  is  that  of  enlightened  toleration, 
comprehending  all  within  the  sphere  of  its  benevolence,  and  extend- 
ing over  all  the  shield  of  mutual  protection. 

The  committee  trust  that  they  shall  not  be  thought  to  exceed  the 
bounds  of  propriety,  by  adopting  this  as  a  fitting  occasion  for  the  sug- 
gestion of  those  amendments  of  the  law,  the  necessity  of  which  is 
made  particularly  obvious  by  this  unhappy  event. 

The  first  which  they  submit,  is  forced  upon  their  consideration  by 
the  difficulties  they  have  encountered  in  their  efforts  to  accomplish  the 
purposes  of  their  appointment;  having  no  official  power  to  compel 
the  attendance  of  witnesses,  or  examination  under  oath,  or  take  any 
other  requisite  measures  for  the  satisfactory  investigation  of  the  guilt 
of  persons  supposed  to  be  implicated ;  but  against  whom  sufficient 
evidence,  without  these  means,  cannot  be  procured. 

The  only  cases,  excepting  when  the  grand  jury  is  actually  in  ses- 
sion, in  which,  under  the  existing  laws,  these  measures  can  be  resort- 
ed to,  is  where  a  complaint  and  arrest  have  been  made;  and,  as 
this  complaint  must  be  the  unofficial  act  of  an  individual,  and  being 
necessarily  public,  often  exposes  him  to  great  odium,  and,  in  many 
cases,  to  personal  danger,  it  is  rarely  ventured  upon  in  opposition  to 
public  opinion  or  prejudice  ;  and  seldom  in  any  case,  excepting  where 
the  evidence  is  in  the  first  instance  conclusive,  or  the  party  implicated 
is  too  humble  to  be  accounted  a  dangerous  enemy. 

If,  on  the  other  hand,  a  bench  of  magistrates  were  empowered  in 
similar  cases,  to  compel  the  appearance  of  witnesses,  and  conduct  their 
examinations  under  the  authority  of  law,  it  is  obvious  that  the  means 
of  detecting  those  concerned  in  the  commission  of  crime,  would  be 
far  more  certain  and  efficacious  ;  and  those  guilty  of  its  inception  and 
instigation,  would  often  be  brought  to  that  punishment,  which  now 
generally  falls  upon  the  humbler  instruments  of  their  villany. 

This  power  might  be  vested  in  the  judges  of  the  court  of  common 
pleas,  and  such  of  the  justices  of  the  peace  in  each  county  as  might 
be  selected  for  that  purpose,  and  thus  be  deposited  in  hands  free  from 
danger  and  abuse.  A  similar  one  exists  in  England,  vested  in  magis- 
trates designated  for  that  purpose  ;  and  it  is  not  known  that  it  has  ever 
been  perverted  to  the  purposes  of  oppression,  though  often  instru- 
mental in  detecting  criminals,  who  might  otherwise  have  escaped  with 
impunity. 

The  second  improvement  which  the  committee  venture  to  sug- 
gest is  the  enactment  of  a  law,  rendering  magistrates  indictable,  when- 
3 


18 

ever  guilty  of  an  omission  to  discharge  their  duty,  in  the  prevention 
of  outrage  or  crime. 

If  rulers  are  the  servants  of  the  people,  it  ought  to  he  understood 
that  as  such  they  are  accountable  for  the  neglect  as  well  as  the  abuse 
of  their  powers  ;  that  the  authority  with  which  they  are  vested  must  be 
exercised  and  shall  be  obeyed.  And  if  men  with  no  higher  sense  of 
duty  than  accountability  to  the  party  by  whom  they  may  have  been 
elected,  and  no  more  honorable  fear  than  that  of  the  loss  of  office,  shall 
be  placed  in  authority  over  us,  they,  the  security  of  whose  persons 
and  property  may  depend  upon  their  fidelity,  should  at  least  have  the 
power  of  holding  them  to  legal  responsibility. 

A  further,  and  perhaps  still  more  salutary  addition  to  our  subsist- 
ing laws,  would  be  a  provision  that  in  cases  of  destruction  of  life  or 
property  occasioned  by  riot  or  tumult,  the  public  shall  be  responsible 
to  indemnify  the  sufferers  to  the  whole  extent  of  their  pecuniary  loss  ; 
restoring  the  value  of  the  property  destroyed,  and  making  suitable 
provision  for  all,  whose  means  of  support  shall  be  lost  or  impaired  by 
the  personal  injury  of  themselves,  or  of  those  upon  whom  they  may 
be  dependant. 

A  provision  of  this  sort  seems  called  for  by  the  first  principles  of 
justice  and  civil  government. 

The  basis  of  eveiy  political  community  is  the  surrender  of  the  right 
of  personal  defence,  and  the  contribution  of  individual  property,  that 
each  may  enjoy  the  mutual  protection  of  all. 

It  is  a  direct  contract  between  each  individual  and  society  at  large, 
in  which  the  latter  receives  a  full  equivalent  for  the  guarantee  to  the 
former  of  security  of  life,  liberty  and  property.  It  is  therefore  the 
duty  of  the  community  to  provide  and  exercise  the  means  necessa- 
ry for  affording  such  protection^,  and  whenever  such  means  do  not 
exist,  or  the  servants  intrusted  with  them  are  faithless  to  their  duty, 
the  contract  is  broken,  and  the  sufferers  are  entitled  to  redress, 

Nor  would  the  expediency  of  such  provision  be  less  obvious  than 
its  justice,  as  the  personal  interest  which  every  one  would  feel  in 
this  responsibility,  would  render  him  vigilant  and  active  in  preventing 
a  tumult,  the  consequences  of  which  might  be  visited  upon  himself. 
At  the  same  time  it  would  influence  the  people  in  the  election  of  mag- 
istrates, who  might  be  relied  on  in  the  hour  of  difficulty  and  danger, 
as  competent  and  fearless  in  the  discharge  of  their  duty. 

The  opinion  so  generally  prevalent  that  the  sufferers  in  this  instance 
were  legally  entitled  to  such  redress  against  the  town  of  Charlestown, 
or  the  county  of  Middlesex,  is  a  striking  proof  how  well  such  a  pro- 
vision would  accord  with  that  sense  of  justice,  which  we  hope  will 
ever  distinguish  this  community. 

But  the  provision  above  suggested  would,  it  is  feared,  be  insuffi- 
cient for  the  purpose,  without  the  organization  of  a  more  efficient  and 
ready  force  than  can  now  be  called  into  action  ;  and  the  committee 
would  suggest  the  expediency  of  legal  provision  therefor. 

It  is  probable  indeed  that  the  mere  knowledge  of  the  existence  of 
such  organization  would  often  of  itself  suffice  to  prevent  riot  and 
tumult. 


19 

Legislative  enactments,  however,  can  avail  but  little,  unless  a  check 
be  given  to  the  tendency  now  pervading  all  parts  of  the  country  to  re- 
fer every  question  to  popular  will,  instead  of  public  laic. 

In  Europe,  the  staff  of  the  police  officer  is  backed  by  the  sabre  of 
the  dragoon  or  the  musket  of  the  gensd'arme;  but  in  our  favored 
land,  there  is  no  immediate  force  but  the  posse  comitatus,  nor  ultimate 
authority  but  the  judicial  tribunal :  the  one  wholly,  the  other  essential- 
ly, an  appeal  to  the  people. 

If  it  be  true  of  other  countries  that  all  power  rests  in  public  opin- 
ion, it  is  in  ours  alone  that  this  principle  is  fully  understood  and  acted 
upon.  Our  only  security,  therefore,  is  an  enlightened  obedience  to  law  ; 
to  be  enforced  by  ah  in  conversation  and  example,  as  the  highest  duty 
of  patriotism  ;  for  upon  this,  and  this  alone,  depends  the  safety  of  our 
political  freedom. 

If  the  time  shall  arrive  when  popular  will  shall  take  place  of  law, 
whether  this  be  by  riots  and  tumults,  or  under  the  form  of  judicial  pro- 
ceedings, the  grave  of  our  nation's  happiness  and  glory  will  have  been 
prepared.  Life,  liberty,  and  property,  will  be  held  at  the  will  of  ma- 
lignity, prejudice,  and  passion;  violence  will  become  the  common 
means  of  self  defence  ;  and  our  only  refuge  from  the  horrors  of  an- 
archy, will  be  under  the  comparatively  peaceable  shelter  of  military 
despotism. 

The  remaining  subject  submitted  to  the  consideration  of  the  com- 
mittee was  the  expediency  of  raising  funds  for  the  purpose  of  indem- 
nifying the  sufferers. 

They  are  of  opinion  that  the  plainest  principles  of  equity  require 
remuneration  to  be  made  ;  but  are  at  the  same  time  impressed  with 
the  conviction,  that  a  donation,  derived  from  private  contribution,  does 
not  so  well  comport  with  public  justice,  and  would  not  constitute  so 
entire  and  expressive  a  vindication  of  the  majesty  of  the  law,  as  would 
a  compensation  proceeding  from  the  government. 

By  the  theory  of  our  institutions,  the  magistrates  of  Charlestown  or 
of  the  county  of  Middlesex  are  vested  with  authority,  and  have  under 
their  control  a  force  sufficient  for  the  prevention  or  suppression  of  pop- 
ular riots  and  tumults.  And  if  the  fact  corresponded  with  the  theory, 
that  town  or  county  would  be  justly  responsible  to  make  good  the  pe- 
cuniary loss  occasioned  by  this  outrage. 

But  if  that  authority  is  insufficient  for  such  emergencies,  and  that 
force  is  defective  in  strength  or  organization,  so  that  it  cannot  be 
brought  to  act  with  promptness  and  energy,  then  the  fault  rests  with 
the  whole  community,  and  upon  them  should  fall  the  burden  of 
indemnity. 

The  committee  cannot  forbear  expressing  the  hope  that  a  public 
outrage  committed  in  such  open  and  audacious  defiance  of  the  law, 
inflicting  so  deep  a  wound  upon  the  reputation  of  the  commonwealth 
and  through  her  upon  the  hitherto  fair  fame  of  New  England,  will 
receive  the  early  attention  of  the  legislature  ;  and  that  a  committee 
will  be  appointed  with  full  power  to  investigate  the  character  of  this 
institution  and  the  conduct  of  its  members,  and  to  take  measures  for 
the  further  detection  of  those  implicated  in  its  destruction  ;  and  that 


20 


a  suitable  compensation  will  be  provided  for  the  sufferers,  so  that  the 
same  page  on  which  the  history  of  our  disgrace  shall  be  recorded, 
may  bear  testimony  to  the  promptitude  of  our  justice  to  the  injured. 

They  lay  aside  all  questions  of  the  expediency  of  indemnifying 
the  sufferers,  as  means  of  aiding  in  the  support  of  the  Catholic  faith. 
Of  their  individual  feelings  and  opinions  upon  that  subject,  their  fel- 
low citizens  can  have  no  doubt ;  but  they  look  upon  the  obligations 
of  justice  as  of  higher  import  and  more  deeply  affecting  our  welfare  as 
a  political  community. 

It  is  enough  that  the  property  of  a  portion  of  our  fellow  citizens, 
erected  under  the  sanction  of  the  laws,  paying  its  full  proportion  of 
the  expenses  of  government,  and  admitted  on  all  hands  to  be  entitled 
to  its  protection,  has  been  openly  and  wantonly  destroyed  through 
the  insufficiency  of  those  laws,  or  the  supineness  or  timidity  of  those 
intrusted  with  their  execution. 

If  regard  is  to  be  had  to  the  religious  or  political  tendency  of  an  in- 
stitution, in  determining  whether  it  be  entitled  to  protection  or  re- 
dress, it  might  be  hard  to  find  one  against  which  the  popular  cry  of 
superstition  or  heresy  or  corruption  might  not  be  raised.  To  resort 
to  such  considerations,  is  the  direct  substitution  of  popular  will  or 
passion  in  place  of  public  law  and  justice.  And  if  this  cruel  and  un- 
provoked injury,  perpetrated  in  the  heart  of  the  commonwealth,  be 
permitted  to  pass  unrepaired,  our  boasted  toleration  and  love  of  order, 
our  vaunted  obedience  to  law,  and  our  ostentatious  proffers  of  an  asy- 
lum to  the  persecuted  of  all  sects  and  nations,  may  well  be  account- 
ed vain-glorious  pretensions,  or  yet  more  wretched  hypocrisy. 

G.  LORING,  Chairman. 


CHARLES 

CHARLES  P.  CURTIS, 
HENRY  LEE, 
JOHN  COTTON, 
HORACE  MANN, 
RICHARD  S.  FAY, 
JOHN  D.  WILLIAMS, 
CYRUS  ALGER, 
JOHN  HENSHAW, 
FRANCIS  J.  OLIVER, 
MARK  HEALY, 
CHARLES  G.  GREENE, 
ISAAC  HARRIS, 
DANIEL  D.  BRODHEAD, 
HENRY  F.  BAKER, 
Z.  COOK,  Jr., 
HENRY  FARNAM, 
WILLIAM  STURGIS, 
BENJAMIN  RICH, 
WILLIAM  HALES, 


JOSEPH  EVELETH, 
CHARLES  H.  PARKER, 
R.  C.  WINTHROP, 
JOHN  L.  DIMMOCK, 
J.  L.  ENGLISH, 
NATHAN  APPLETON, 
WILLIAM  APPLETON, 
DAVID  CHILD, 
SAMUEL.  K.  WILLIAMS, 
THEOPHILUS  PARSONS, 
EDWARD  BLAKE, 
L.  STANWOOD, 
THOMAS  MOTLEY, 
HENRY  GASSETT, 
JAMES  CLARK, 
GEORGE  DARRACOTT, 
JOHN  KETTEL, 
EDWARD  D.  SOHIER. 


REPORT 


MADE  TO  THE  HOUSE  OF  REPRESENTATIVES,  AT  THE  WINTER 
SESSION  OF  1842. 


COMMONWEALTH  OF  MASSACHUSETTS. 

The  select  committee  of  this  House,  to  whom  was  referred  the 
petition  of  George  Bradburn,  praying  the  legislature  to  indemnify  the 
proprietors  of  the  Ursuline  Convent  in  Charlestown,  have  had  the 
subject  under  consideration,  and 

REPORT: 

Nearly  eight  years  have  now  elapsed,  since  the  Ursuline  Convent 
in  Charlestown,  a  seminary  devoted  to  purposes  of  education, 
resorted  to  by  the  daughters  both  of  our  Protestant  and  Catholic  citi- 
zens, and  inhabited  at  the  time  by  about  fifty  children  and  ten  adults, 
all  of  them  females,  was  destroyed  by  a  mob  in  the  night,  without 
defence,  upon  one  of  the  most  conspicuous  spots  on  the  map  of  Massa- 
chusetts. Deal  with  this  event,  and  with  the  claims  arising  out  of  it, 
as  we  or  any  future  legislators  may  see  fit  to  do,  it  is  forever  engraved 
upon  the  history  of  the  commonwealth,  as  an  act  of  atrocity  and  bar- 
barity unparalleled  in  the  history  of  the  civilized  world.  Such  it  is 
felt  to  be  in  foreign  countries  —  as  such  it  is  regarded  by  our  own 
people  ;  and  though  the  slumbering  conscience  of  that  people  has  not 
yet  been  awakened  to  the  act  of  justice  which  can  alone  wipe  out  the 
disgrace,  no  man  can  assume  that  the  question  of  that  justice  is 
settled.  The  petition  before  us  is  but  an  illustration  of  what  future 
years  will  bring  forth.  It  is  the  petition  of  a  single  individual  — 
speaking  from  the  retirement  of  a  far- oif  privacy  —  and  praying  us  to 
dispose  of  the  great  question  of  public  duty  involved  in  this  subject. 
So  it  will  be,  hereafter.  We  may  neglect  or  postpone  this  topic,  as 
we  please ;  we  may  turn  from  its  investigation  as  unpleasant,  or 
inexpedient :  we  may  take  the  scales  from  the  hands  of  Justice,  and 
tear  off  the  bandage  from  her  eyes,  and  permit  her  to  be  engrossed 
with  partial  views  of  her  great  employment :  still  there  will  be  minds 
who  will  not  be  silenced  by  neglect  or  expediency,  and  who  will, 
from  time  to  time,  and  from  age  to  age,  demand  that  their  high  sense 
of  duty  and  their  keen  perception  of  the  true  honor  of  the  state,  shall 
be  felt  in  the  public  councils. 


22 

In  order  to  state  clearly  the  relations  of  the  commonwealth  to  this 
subject,  it  will  be  necessary  to  premise  a  brief  statement  of  the  facts, 
which  we  draw  from  a  report  made  to  the  House  of  Representatives 
in  February,  1835,  (documents  of  1635,  No.  37,)  and  from  a  report 
made  by  a  committee  of  citizens,  in  August,  1834,  to  the  inhabitants 
of  Boston,  after  the  most  thorough  investigation  ever  had  upon  the 
subject. 

The  substance  of  what  took  place  on  the  night  of  the  11th  of 
August,  1834,  may  for  the  purposes  of  the  present  discussion,  be 
stated  to  be : — That  the  building  and  its  contents  of  furniture,  clothes, 
books,  musical  instruments  and  other  apparatus  of  instruction,  together 
with  much  other  valuable  property,  partly  belonging  to  the  proprietors 
of  the  establishment,  and  partly  to  the  children  resident  there,  were 
destroyed,  burnt  and  pillaged  by  a  mob,  in  the  night,  the  immediate 
incitement  of  whose  lawless  conduct  was  an  unfounded  rumor  against 
the  purity  of  the  institution,  coupled  with  religious  hatred.  That  no 
defence  of  their  property  or  persons  was  afforded  by  this  government, 
or  any  other  power,  to  these  defenceless  women  and  children,  and  to 
the  proprietors  of  the  estate.  That  those  proprietors  were  citizens  of 
the  commonwealth,  their  property  paying  its  full  proportion  of  taxes. 
That  no  law  of  the  commonwealth  then  existed,  to  make  the  town 
or  particular  neighborhood  responsible  for  such  injuries,  when  the 
local  authorities  should  have  failed  to  prevent  them,  or  to  punish 
magistrates  who  should  grossly  neglect  their  duty  in  such  cases. 

We  now  propose  to  assert  and  maintain  the  following  proposition : 
That  there  existed,  at  the  time  of  the  destruction  of  the  Ursvline  Con- 
vent and  of  the  movable  property  contai?ied  in  it,  an  implied  contract 
between  the  state  and  each  of  the  owners  thereof,  hi/  which  the  state 
was  bound  to  insure  to  such  oivner  the  preservation  and  dominion  of  his 
property  against  such  a  destruction;  and  that  the  failure  to  do  /his, 
creates  a  claim  upon  the  state,  in  justice  and  equity,  of  the  highest 
nature. 

In  any  discussion  by  which  this  proposition  is  to  be  maintained,  it 
will  need  to  be  borne  in  mind,  that  not  only  must  the  sources  from 
which  obligations  are  to  be  deduced  lie  far  deeper  than  any  written 
or  technical  law,  but  that  terms  expressing  the  ideas  of  contract  and 
obligation  must  be  used  in  a  higher  sense  than  the  popular  or  tech- 
nical meaning  of  express  stipulation.  The  sources  from  which  the 
duties  and  obligations  and  implied  contracts  of  a  nation,  or  sovereign 
community,  are  to  be  drawn,  are  not  its  statutory,  or  even  its  organic 
laws.  These  merely  declare  the  means  and  modes  in  which  the 
political  society  from  time  to  time  undertakes  to  discharge  its  duties 
and  fulfil  its  obligations.  In  the  written  or  positive  law  of  what 
state,  for  instance,  is  the  duty  of  preserving  and  defending  itself  and 
its  members  enacted,  or  declared,  so  that  it  may  be  said  to  spring 
from  such  enactment  or  declaration  ?  A  state  declares  by  law  how 
it  will  discharge  this  duty ;  it  provides  by  law  the  means  and  the 
mode ;  but  the  duty  is  anterior  to  all  declaration  and  all  provision 
for  its  discharge.  If  the  duty  is  in  terms  recognized,  or  declared  in 
the  fundamental  law  by  which  the  form  of  government  is  defined,  or 


23 

in  any  statutory  law,  it  may  be  well ;  but  it  is  no  less  a  duty,  if  it  be 
not  so  declared ;  for  it  exists  and  is  created  by  the  original  compact 
of  civil  society,  independent  of  all  forms  of  government,  or  modes  of 
exercising  it.  So  also  the  great  duty  of  administering  justice,  which 
is  only  a  mode  of  protecting  the  members  of  society  against  the  rapine 
and  injustice  of  each  other,  is  a  duty  wholly  independent  of  the  forms 
or  means  in  and  by  which  it  is  discharged.  This  duty  springs  not 
from  the  institution  of  courts,  or  the  adjustment  of  rights,  or  titles ;  it 
is  not  created  by  the  science  of  law.  It  is  anterior  to  all  these  things, 
which  are  merely  machinery  and  instruments.  It  is  found  in  the 
organization  of  society;  by  which  men  have  engaged  to  furnish  to 
each  other  a  mutual  defence  against  violence  and  the  peaceful  pos- 
session of  property. 

We  may  see  then,  that  to  ascertain  the  duties  of  a  state,  resulting 
from  its  implied  contracts,  we  must  not  look  to  its  laws,  whether 
written  or  traditionary.  We  must  look  beyond  its  institutions  and  its 
form  of  government.  These,  of  themselves,  in  no  way  determine  the 
obligations  and  duties  of  the  society,  which  cannot  be  changed  or 
diminished,  until  the  end  and  object  of  society  is  found  to  be,  not 
protection  and  preservation,  but  exposure  and  destruction.  Whether 
I  dwell  in  society  under  a  sovereign  prince,  or  a  sovereign  people,  it 
is  equally  the  duty  of  that  prince  and  of  that  people  to  protect  my 
body  from  violence  and  my  property  from  rapine.  This  is  the  very 
object,  politically  speaking,  for  which  I  am  in  society  at  all,  and  it  is 
what  I  stipulate  to  do  with  and  for  every  other  man,  who  is  in  society 
with  me. 

From  these  illustrations,  it  will  be  obvious  that  there  is  a  sense  in 
which  the  terms  contract  and  obligation  may  and  must  be  used,  wholly 
beyond  the  meaning  of  express  covenant,  or  positive  agreement  or 
stipulation.  But  this  higher  sense  of  the  terms  is  not  only  precise 
and  accurate  —  it  is  also  familiar  and  frequent.  The  technical  law  of 
the  land,  which  defines  and  regulates  the  duties  of  individuals  to  each 
other,  is  full  of  instances  of  contract,  wherein  the  obligation  is  strictly 
implied,  springing  from  no  express  promise  or  undertaking.  The 
obligation  is  deduced  from  natural  equity,  from  the  fact  that  a  con- 
sideration moves  from  one  party  to  the  other,  and  from  the  necessity 
of  presuming  a  promise  without  which  justice  would  fail  to  be  done. 
Upon  this  basis,  the  law  raises  an  implied  contract,  wherever  it  can 
take  cognizance  of  the  duty  incumbent  upon  the  party.  It  presumes, 
in  all  cases  where  it  finds  a  duty  which  human  laws  can  enforce,  that 
what  a  man  ought  to  do  he  has  already  promised  and  undertaken  to 
do.  Contracts  thus  implied  are  familiar  in  the  daily  business  of  life  ; 
and  if  the  principles  on  which  they  rest  are  sound,  and  if  the  use  of 
the  terms  by  which  they  are  described  is  correct,  in  such  cases,  they 
can  be  no  less  so  in  the  great  mutual  relations  of  society  and  the 
individual.  R,eason,  justice,  natural  equity  and  the  obligations  de- 
ducible  from  them,  were  ordained  for  the  great  fundamental  relations 
of  man,  as  well  as  for  his  minor  affairs. 

Having  said  thus  much  of  the  sources  from  which  our  reasoning  is 
to  be  drawn,  we  proceed  to  consider  the  proposition  above  laid  down. 


24 

The  first  branch  of  that  proposition  is,  in  substance,  that  there 
existed  an  implied  contract  on  the  part  of  the  state,  to  protect  the 
owners  of  this  property  in  its  peaceful  possession  and  enjoyment, 
against  such  a  destruction  as  that  by  which  it  was  torn  from  them. 

It  is  obvious,  from  what  has  been  already  said,  that  it  is  from  the 
political  capacity  of  the  people  of  the  commonwealth,  as  a  civil 
society,  and  from  the  position  of  the  individual  member  of  that  society, 
that  we  are  to  deduce  this  contract;  which,  if  it  exist  at  all,  in  any 
society,  exists  equally  under  any  and  all  forms  of  government,  and  is 
independent  of  all  such  forms. 

It  is  generally  admitted  and  presumed  by  all  men,  that,  among  the 
ends  or  objects  of  human  society,  are  the  peaceful  possession  of 
property  and  a  mutual  defence  against  all  external  violence.  Now 
the  very  act  of  association  for  these  ends,  necessarily  supposes  an 
agreement  of  the  whole  of  the  members  with  each  member,  to  aid 
him  in  the  accomplishment  of  them.  Government  is  the  intelligent 
agent  through  whom  the  whole  of  the  members  are  to  perform  this 
agreement  with  each  other.  As  these  ends  of  civil  society  are  of  the 
utmost  consequence,  and  as  merely  partial  attainment  of  them  is  not 
to  be  presumed  to  be  the  object  of  the  individual  in  entering  into 
society,  but  rather  the  full  and  perfect  attainment  of  them  is  to  be 
presumed  to  be  his  object,  the  agreement  by  which  society  is  formed 
must  be  presumed  to  embrace  a  stipulation  that  the  protection 
furnished  shall  be  as  complete,  full  and  perfect  as  it  can  possibly  be 
made.  This  is  not  merely  the  presumption  of  theory.  It  is  a  pre- 
sumption found  in  the  practical  recognized  duties  of  states  and  nations. 
The  individual  stipulates  for  full  protection  of  his  life ;  and  no  state 
can  take  from  a  member  his  life,  or  abandon  it  to  be  taken  by  others, 
unless  compelled  to  do  so  by  necessity,  or  indispensably  obliged  to  it 
by  the  strongest  reasons  of  the  public  safety.  The  individual  engages 
for  full  protection  of  his  property  :  and  no  civilized  state  takes  from 
him  that  property,  even  for  the  purposes  of  the  general  welfare  and 
safety,  without  rendering  to  him  a  full  equivalent.  These  illustrations 
are  sufficient  to  show  that  it  is  not  a  partial,  or  imperfect,  or  feeble 
protection,  for  which  the  individual  stipulates  when  he  enters  into,  or 
is  found  in  society.  Partial  protection,  feeble  and  imperfect  defence, 
he  can  make  for  himself,  in  what  the  publicists  call  "  the  liberty  of 
nature."  He  enters  into  society  for  as  full  and  perfect  protection  as 
a  mortal  condition  can  have. 

Such  being  the  nature  and  degree  of  the  protection  for  which 
society  is  instituted,  in  what  way  does  the  contract  for  it  between  the 
individual  and  society  arise  ? 

A  contract,  in  all  legal  and  moral  reasoning,  imports  a  consideration 
of  some  kind,  passing  from  the  party  who  asserts  the  existence  and 
benefit  of  the  contract,  to  the  party  of  whom  he  claims  the  performance 
of  its  obligations.  A  consideration  may  be  of  money  or  other  material 
thing.  But  it  may  also  be  of  value  that  is  not  appreciable  in  money. 
It  may  consist  of  various  kinds  of  benefit  or  advantage,  passing  from 
one  party,  or  derived  from  one  party  to  the  other.  It  may  be  a  moral 
or  political  benefit  or  advantage,  as  distinguished  from  pecuniary  or 
material  gain.  Of  considerations  of  these  various  kinds,  as  the  basis 
of  contracts,  the  common  affairs  of  life  furnish  numerous  instances. 


25 

To  apply  these  principles  to  the  relation  of  the  body-politic  and  its 
members,  what  can  be  said  to  be  the  consideration,  or  considerations, 
passing  from  the  latter  to  the  former,  in  the  social  compact  ?  They 
are  of  all  kinds. 

First.  The  individual,  by  his  presence  and  residence  in  society, 
by  virtue  of  his  membership,  adds  to  the  numbers,  the  force,  the 
power,  and  resources  of  the  nation.  He  is  an  integral  part  of  the 
whole  body  of  the  state  ;  and  as  the  perfection  of  a  nation,  which  is  its 
grand  duty,  can  be  advanced  only  by  the  preservation  and  is  retarded 
by  the  destruction  of  its  members,  each  of  whom  can  contribute 
to  that  perfection,  it  follows  that  every  accession  of  an  individual 
to  the  body  of  a  nation  must  be  treated  as  a  new  benefit  or  advantage. 
Upon  this  ground,  the  murder  of  infants,  just  born  or  unborn,  of  whom 
no  character  can  be  predicated,  becomes  a  crime  against  the  state  : 
and  upon  this  ground  the  reformation  of  criminals  becomes  a  duty  of 
the  state. 

Secondly.  The  state  derives  a  benefit  or  advantage  from  the  indi- 
vidual, by  whatever  he  does  to  carry  on  the  machinery  of  society,  in 
working  out  that  perfection  which  is  its  end.  Viewed  in  this  light, 
before  this  high  law  of  human  destiny,  it  may  truly  be  said  that 
all  men  are  equal.  They  are  all  equal,  in  this  :  that  each,  who  does 
not  absolutely  war  against  society,  fills  some  sphere,  however  humble, 
in  its  great  taskwork,  and  for  so  doing,  receives  all  its  protection,  all 
its  defence,  and  is  thus  held  of  equal  value  to  the  state  with  every 
other. 

In  the  third  place.  The  state  derives  benefits  from  the  individual, 
by  the  presence  of  his  property,  (in  which  term  is  to  be  included 
labor,)  which  he  might  remove  into  the  liberty  of  nature,  if  he  chose. 
The  increase  which  his  property  adds  to  the  aggregate  wealth  of  the 
whole,  is  one  of  these  benefits.  The  use,  employment  and  con- 
sequent advantage  derived  therefrom  to  the  community,  are  other 
benefits.  The  imposts  and  contributions  which  the  nation  may  exact 
from  that  property,  for  the  common  purposes,  form  other  benefits, 
directly  appreciable  as  an  actual  pecuniary  consideration. 

Finally.  The  individual  has  engaged  and  contracted  with  every 
other  member  of  the  society  to  aid  in  the  accomplishment  of  the  great 
ends  of  protection  and  defence,  for  which  the  society  is  instituted. 

All  these  considerations,  in  the  case  of  an  individual,  have  passed 
and  are  passing  from  him  to  the  state,  at  every  moment  of  his 
existence.  Any  one  of  them  is  sufficient  to  raise  an  implied  promise 
on  the  part  of  the  state,  to  confer  that  benefit  upon  him  for  which  the 
state  is  avowedly  instituted,  and  which  he  demands  of  it.  Take,  for 
instance,  the  lowest  form  in  which  these  considerations  may  present 
themselves — the  case  of  the  most  humble  individual,  performing  the 
lowest  offices  of  human  labor.  Is  his  life  of  no  value  to  the  state  ? 
Is  he  not  one  of  its  thousands,  or  millions,  the  vast  aggregate  of  whom 
constitute  its  character,  its  force,  its  grand  developement  of  civilized 
man  towards  perfection?  Must  not  the  wood  that  he  hews,  and 
the  water  that  he  draws,  be  hewn  and  drawn  ?  and  is  he  not  there, 
patient  and  faithful,  to  do  it  ?  Is  not  his  labor  at  once  his  own  little 
4 


26 

capital  and  the  state's  integral  wealth  ?  Happily  for  mankind,  wher- 
ever false  institutions  have  not  corrupted  the  general  heart,  these 
benefits,  which  move  from  the  humblest  individual  to  society,  are 
admitted  to  constitute  a  full  and  perfect  claim  to  all  its  protection,  for 
the  great  purposes  of  life,  liberty  and  the  pursuit  of  happiness ;  and 
thus  the  peasant,  on  the  original  platform  of  the  social  compact,  is 
equal  with  the  prince. 

We  have  been  the  more  disposed  to  run  these  illustrations  out  to 
the  extreme  of  society,  because  it  seems  to  us  that  the  denial,  in  any 
case,  of  the  contract  between  society  and  the  individual,  as  created 
by  what  moves  from  the  one  to  the  other,  necessarily  strikes  at  the 
doctrine  of  the  importance  of  individual  man  :  a  doctrine,  which  is  the 
great  characteristic  of  this  age,  and  which  may  be  maintained  by 
a  legal,  as  well  as  a  religious  argument. 

If,  then,  it  be  true  that  these  considerations  do  move  from  the  indi- 
vidual to  the  state,  or  body-politic,  it  must  of  necessity  follow  that 
they  create  corresponding  duties  on  the  part  of  the  state  towards  him, 
unless  we  assume  that  he  has  no  object  in  entering  society,  or  in  re- 
maining in  it,  or  that  he  requires  and  expects  nothing  of  it.  If  he  has 
any  object  in  remaining  a  member  of  the  state  ;  if  he  and  all  other 
members  unite  together  for  any  great  common  purpose  ;  if  he  and  they 
expect  and  require  of  each  other  some  common  good,  about  which 
they  are  all  agreed ;  in  short,  if  society  is  formed  for  any  purpose,  and 
upon  any  design,  and  for  any  object,  the  individual  is  entitled  to  the 
whole  benefit  of  that  design  and  object,  by  paying  for  it  a  full  consid- 
eration. "We  have  assumed,  as  an  admitted  fact,  that  the  object  of 
joining  the  social  league  and  for  which  it  is  instituted,  is  mutual  de- 
fence against  violence  and  full  protection  of  property,  Whoever 
enters  this  league,  for  its  avowed  objects,  and  gives  a  consideration 
for  what  he  demands,  raises  an  implied  contract  on  the  part  of  the 
other  members  that  he  shall  have  what  he  demands  of  them  and  what 
they  demand  of  him.  If  there  were  nothing  in  the  case  other  than 
the  simple  promise  of  the  individual  to  all  the  other  members  of  soci- 
ety, that  he  will  protect  and  defend  them  and  their  property,  that  pro- 
mise is  made  by  every  member  with  every  other,  and  thus  the  idea 
of  a  contract  is  as  complete  as  law,  reason  and  justice  can  make  it. 
But  we  have  seen  that  there  is  much  more  in  the  case. 

There  is  another  view  of  this  great  relation  equally  strong.  The 
state  cannot  say  to  one  of  its  members,  already  within  the  pale  of  mem- 
bership, that  it  does  not  receive  his  consideration,  and  therefore  is  un- 
der no  contract  with  him.  It  can  make  no  distinctions,  for  it  cannot 
afford  to  dispense  with  the  individual.  If  it  could  do  so,  it  could  dis- 
pense with  one  equally  as  well  as  with  another,  and  thus  the  state  is  dis- 
solved, or  rather  it  never  was  formed.  The  Roman  law  did  not  permit 
the  life  of  a  citizen  to  be  valued  in  money  ;  thereby  declaring  that  its 
political  value  was  beyond  all  price  ;  and  there  is,  in  fact,  no  other  bond 
or  theory  by  which  a  nation  can  cohere  together,  than  the  recognition 
of  the  inestimable  value  of  the  individual  to  the  state,  This  recogni- 
tion is  found  in  the  theory  of  all  civilized  states  ;  and  they  have,  there- 
fore, already  received  from  each  of  their  members  his  part  of  the  com- 


27 

pact,  already  taken  his  consideration,  already  entered  into  the  treaty 
with  him,  for  their  own  advantage,  and  are,  therefore,  bound  to  his  pro- 
tection and  preservation  by  a  tie,  which  nothing  but  overwhelming 
reasons  of  the  public  safety  can  ever  break. 

We  now  proceed  to  show  that  the  commonwealth  of  Massachu- 
setts has  rco.gnized  this  whole  doctrine,  as  applied  to  cases  similar  to 
that  before  us. 

An  act  was  passed  on  the  16th  of  March,  1839,  providing  that  where 
property  is  destroyed  by  persons  riotously  assembled,  the  city  or  town 
in  which  such  property  is  destroyed,  shall  pay  to  the  owner  three 
fourths  of  its  value  ;  one  fourth  of  the  loss  being  left  to  fall  upon  the 
individual  owner,  in  order  to  stimulate  him  in  the  defence  of  his  own 
property. 

Several  things  are  clear  from  the  provisions  of  this  statute. 

First.  That  the  placing  the  burden  of  indemnity  upon  the  city  or 
town  where  the  injury  is  done,  is  merely  a  matter  of  policy,  to  awaken 
the  vigilance  of  the  local  police.  There  is  no  reason  in  principle  why 
the  town  where  a  violent  destruction  of  property  occurs,  should  bear 
the  loss.  There  might  well  be  great  injustice  in  it,  if  the  question 
were  asked,  who  did  the  act?  —  because  rioters  might  go  from  one 
town  to  another,  and  there  destroy  property  which  the  innocent 
inhabitants  would  be  taxed  to  pay  for.  But  this  law  proceeds  upon 
the  principle  that  protection  from  such  outrages  is  guarantied  by 
society,  and  upon  the  further  principle  that  the  local  authorities  can, 
and  therefore  it  declares  they  shall,  prevent  such  outrages. 

Secondly.  It  is  clear  that  the  state  admits,  by  this  act,  that  in- 
demnity is  due  to  the  individual,  by  virtue  of  the  social  compact. 
There  is,  otherwise,  nothing  but  mere  tyranny  and  injustice  in  the 
act  itself.  To  say  that  even  a  man  in  the  same  town,  who  sits 
peaceably  by  his  own  fire-side,  while  a  riotous  assemblage  is  destroy- 
ing a  neighboring  house,  shall  contribute  to  pay  for  the  injury  which 
he  has  not  caused,  is  a  palpable  injustice,  upon  any  other  hypothesis 
than  that  of  the  contract  on  which  society  is  based.  Admit  this 
contract,  and  there  is  no  injustice  or  hardship  in  the  case. 

In  the  third ])lace.  It  is  clear  that  this  statute  did  not  create  the 
original  duty  or  obligation  to  indemnify  the  sufferer  in  such  cases. 
That  duty  can  neither  be  created  nor  destroyed  by  the  municipal 
law.  If  it  can  be  created  by  statute,  it  can  be  destroyed  by  statute, 
and  then  civil  society  is  dissolved.  The  duty  can  be  regulated  —  its 
burdens  can  be  placed  here  or  there,  as  matter  of  policy ;  but  it  exists 
a  duty,  in  all  cases  where  protection  has  failed,  alike  before  such 
regulation  as  afterwards. 

We  now  come  to  the  inquiry,  whether  there  was  a  failure  of 
protection,  in  this  case,  for  which  the  commonwealth  is  in  justice  and 
equity  responsible  ? 

That  there  was  a  failure  of  protection,  in  point  of  fact,  is  matter  of 
notorious  history.  There  was  not  only  no  defence  made  of  these 
helpless  women  and  children,  but  none  was  attempted  to  be  made. 
There  was  not  only  no  protection  of  the  property  actually  extended, 
but  none  was  attempted,  by  any  one.      The  mob  had  free  course 


28 

to  glut  themselves  with  the  work  of  destruction.  Now,  we  are  aware 
that  there  are  persons  who  are  accustomed  to  reason  upon  this  matter, 
from  the  fact  .that  the  local  magistrates  and  the  citizens  of  the  im- 
mediate neighborhood  might  have  interfered  to  repel  the  mob  ;  that 
there  was  a  period  in  the  course  of  the  attack,  when  any  twenty- 
resolute  men  would  have  quelled  the  whole  riot ;  and  that  it  is, 
therefore,  not  just  to  make  the  commonwealth  pay  for  what  the 
persons  on  the  spot  might  have  prevented. 

This  reasoning  would  be  just,  if  it  could  first  be  ascertained  that  this 
government  had  no  duties  incumbent  upon  it,  prior  to  the  com- 
mencement of  the  riot,  or  that  it  had  discharged  all  those  duties.  But 
when  one  looks  beyond  the  duties  of  the  local  magistrate,  or  of  the 
local  population,  to  inquire  whether  the  state  had  discharged  all  its 
duty  in  the  premises,  it  is  impossible  not  to  see  that  there  was  a 
failure  of  duty  on  the  part  of  the  state,  for  the  injuries  occasioned  by 
which,  a  just  and  generous  people  ought  to  be  willing  to  make 
amends. 

There  was  a  failure,  in  the  want  of  suitable  legislation  to  compel 
magistrates  to  do  their  duty  in  such  cases,  and  to  punish  them  if  they 
did  not.  It  is  not  ■within  the  bounds  of  probability,  if  a  law  of  the 
commonwealth  had  existed,  severely  punishing  a  magistrate  who 
should  grossly  neglect  to  use  the  power  with  which  other  laws  had 
armed  him  for  the  suppression  of  riots,  or  giving  the  party  injured 
a  claim  for  damages  against  such  magistrate,  that  this  property  ever 
would  have  been  destroyed  —  that  this  stain  ever  would  have  rested 
upon  the  fair  fame  of  Massachusetts.  Is  it  said  that  such  legislation 
would  then  have  been,  or  would  now  be  unwise,  because  the  mag- 
istrate may  well  be  left  to  his  general  sense  of  duty  and  to  the 
corrective  power  of  public  opinion,  if  he  does  not  do  his  duty  ?  This 
very  event  proves,  with  a  melancholy  distinctness,  that  such  grounds 
of  trust  are  no  sufficient  security  for  the  citizen.  The  infection  of 
popular  prejudice  that  threatens  the  life  or  property  of  a  citizen,  may 
reach  the  magistrate  ;  there  may  be  no  corrective  in  public  opinion, 
for  it  may  applaud,  for  the  moment,  the  neglect  of  duty  which  gives 
way  to  its  bad  passions,  and  the  magistrate  is  restored  to  his  sense  of 
duty  only  when  it  is  too  late  for  him  to  act.  That  the  commonwealth 
entertains  the  same  opinion,  is  manifest  from  a  statute  passed  only  a 
year  after  this  riot,  punishing  magistrates  for  such  neglect  of  duty, 
and  incorporated  in  the  129th  chapter  of  the  Revised  Statutes. 

Another  failure  of  protection  on  the  part  of  the  state,  was  in 
the  want  of  such  a  provision  as  that  contained  in  the  act  of  1839, 
by  which  the  social  compact  with  the  individual  is  carried  out,  and  he 
is  made  whole,  as  far  as  is  consistent  with  the  policy  of  enlisting  his 
own  exertions  in  the  defence  and  preservation  of  his  own  property. 
It  is  difficult  for  any  man  to  point  out  why  it  was  the  duty  of  the 
commonwealth  to  have  made  this  provision  in  1839,  and  yet  why  it 
was  not  also  its  duty  to  have  made  it  in  1834.  It  is  difficult  for  any 
man  to  show  that  the  state  did  not  stand  then  in  the  same  position 
as  it  stands  now,  the  particular  provisions  of  the  act  of  1839  being 
merely  matter  of  public  policy,  and  not  differing  in  principle  from  the 


29 

compact  between  the  whole  people  and  the  individual.  If  it  is  right 
for  the  legislattxre  to  call  upon  the  people  of  a  town  to  pay  for 
property  destroyed  in  it  limits  by  persons  who  may  nqt  dwell  there, 
it  is  equally  right  for  the  state,  in  its  sovereign  capacity,  to  give  the 
individual  an  indemnity  who  suffered  at  a  time  when  no  such  pro- 
visions existed. 

Is  it  said,  that  it  had  never  occurred  to  the  people  of  the  common- 
wealth that  such  legislation  was  expedient,  or  that  such  necessity  for 
it  would  ever  arise  ?  The  answer  to  this  suggestion  is  two-fold.  First : 
it  is  as  much  the  duty  of  the  sovereign  power  to  enact  wise  and 
salutary  laws,  as  it  is  to  execute  those  which  it  has  already  enacted. 
Laws  are  but  the  means  and  modes  in  which  society  proceeds  to 
discharge  its  great,  original,  prior  duties  to  the  citizen  and  to  itself. 
One  of  those  duties  is  self-preservation,  of  itself  and  its  members  ; 
equally  imperative,  equally  transcendant  as  a  duty  before  the  nation 
has  taken  its  measures  for  defence  and  after  it  is  armed  to  the  teeth. 
Can  it  be  said  that  the  nation  is  guiltless  of  the  blood  or  the  property 
of  a  citizen,  whose  life  is  taken  or  whose  effects  are  pillaged,  for  want 
of  suitable  measures  of  protection,  simply  because  those  measures 
had  not  been  taken?  —  or  because  it  had  not  occurred  to  the  nation 
that  the  measures  were  necessary  ?  A  sudden  invasion  might  descend 
upon  a  town,  from  an  unexpected  quarter,  in  time  of  profound  peace, 
and  cut  it  off  from  the  nation  ;  but  it  would  require  circumstances  of 
the  clearest  surprise,  of  the  most  entire  absence  of  all  suggestions  or 
suspicions  of  danger,  to  absolve  from  blame,  under  the  social  compact, 
the  nation  that  had  thus  left  its  member  to  destruction.  It  is  the 
public  duty  to  foresee  public  danger.  There  is  no  principle  more 
clearly  defined  in  the  law  of  nations,  or  more  uniformly  asserted  by  the 
great  publicists  of  Christendom,  than  this  :  that  the  sovereign  power, 
"  as  a  faithful  administrator,  is  to  watch  for  the  nation,  and  take  care 
to  preserve  it  and  render  it  more  perfect  —  to  better  its  state,  and  to 
secure  it  as  far  as  possible  against  every  tiling  that  threatens  its  safety 
or  its  happiness."* 

It  comes  then,  upon  the  question  of  prior  legislation,  or  of  the  public 
duty  as  to  such  legislation,  to  this ;  that  where  sagacity  and  public 
prudence,  and  that  wisdom  which  is  ever  vigilant,  in  theory,  in  the 
mind  of  the  sovereign  power,  could  not  foresee  danger,  should  not 
have  borrowed  suggestions  from  every  quarter,  could  not  see  examples 
at  home  or  abroad,  the  failure  of  provision  to  anticipate  the  particular 
evil  or  exposure  must  be  excused.  But  where  all  reasons  for  sug- 
gesting preparation  exist  —  where  prior  experience  at  home  or 
abroad,  the  state  of  society,  the  obvious  policy,  the  existing  cir- 
cumstances, the  strong  necessity,  are  all  pointing  to  some  provision 
to  meet  such  a  calamity  as  has  now  come  for  want  of  the  provision, — 
it  cannot  be  said  that  there  is  no  public  negligence. 

This  brings  us  to  the  second  answer  to  the  objection  we  are  now 
considering  —  an  answer  upon  the  point  of  fact. 

It  is  not  true,  that  the  commonwealth  had  no  reason  to  suppose 

*  Vattel,  Book  i.  chap.  4. 


30 

that  such  legislation  would  ever  be  necessary.  Riots  in  her  own 
borders  had  previously  taken  place,  at  different  times,  with  circum- 
stances of  more  or  less  atrocity,  and  attended  with  more  or  less  des- 
truction of  property.  In  other  states  of  this  Union,  riots  of  a  more 
fearful  character,  in  which  lives  as  well  as  property  had  been  des- 
troyed, had  led  to  legislative  enactments  adapted  to  the  prevention  of 
such  outrages,  or  to  the  remuneration  of  the  sufferers.  In  the  country 
from  which  our  earlier  laws  and  institutions  were  derived,  statutes 
had  existed  for  centuries  prior  to  the  emigration  of  our  ancestors,  and 
still  exist,  by  which  the  burden  of  indemnity,  in  similar  cases  of  the 
destruction  or  pillage  of  property,  is  thrown  upon  the  local  community, 
which  is  thereby  made  to  stand  in  the  place  and  to  discharge  the  duty 
of  the  whole  public.  These  laws  were  not  transferred  here  and 
adopted  by  our  ancestors,  so  as  now  to  be  part  of  the  common  law  of 
Massachusetts,  because  the  theory  of  our  common  law  is,  that  it  con- 
sists only  of  such  of  the  laws  of  England,  prior  to  the  revolution,  as 
our  ancestors  found  to  be  required  by  their  peculiar  situation  in  this 
country,  prior  to  that  time.  But  the  example  of  such  legislation,  as 
adapted  to  and  required  by  a  state  of  society  such  as  had  already 
come  to  pass  among  us,  prior  to  the  year  1834,  was  before  the  people 
of  this  commonwealth,  in  the  legislation  of  other  states  and  coun- 
tries. The  very  outrage  of  that  year  shows  that  such  a  state  of  society 
had  come  to  pass ;  the  commonwealth  provided  for  it  in  part,  in  the 
year  1839;  and  the  existence  of  these  facts  is  sufficient  to  make  up  a 
case,  in  which  it  may  properly  be  said  to  have  been  incumbent  upon 
the  sovereign  power  to  have  anticipated  the  probable  occurrence  of 
such  evils,  by  provisions  to  prevent  or  repair  the  mischief,  as  well 
before  the  eleventh  day  of  August,  1834,  as  afterwards. 

It  remains  for  us  to  anticipate  an  objection  which  may  occasion 
difficulty  to  some  minds.  It  will  be  urged,  that  the  ground  which  we 
have  taken  covers  equally  a  loss  of  property  by  other  wrongs  than 
riots,  and  that  an  inconvenient  precedent  would  be  established,  by 
which  persons  who  had  suffered  by  robbery,  or  other  trespass,  would 
claim  indemnity  of  the  state.  The  answer  to  this  suggestion  is,  not 
that  a  case  of  robbery  (on  the  highway,  for  instance,)  differs  in  strict 
principle  from  the  case  before  us.  It  is  equally  the  duty  of  society 
to  protect  the  property  of  the  citizen  in  all  cases.  But  the  distinction 
between  a  case  of  robbery  on  the  highway,  and  the  case  of  the  Ursu- 
line  Convent,  is,  that  in  the  former  case  there  is  more  ground  for  hold- 
ing that  the  commonwealth  has  done  all  its  duty  of  protection,  than 
there  is  in  the  latter,  Robbery  is  severely  punished,  and,  considering 
the  degree  of  temptation  held  out  at  any  particular  time,  and  the 
small  amount  of  property  exposed,  perhaps  it  may  be  said  that  the 
punishment  is  in  general  sufficient  to  prevent  the  offence,  and  thus 
full  protection  is  at  least  approximated.  But  if  it  be  not  so,  if  the 
punishments  provided  for  the  particular  crime  are  not  a  sufficient  pro- 
tection of  the  citizen  against  that  crime,  if  indemnity  is  the  only  thing 
that  will  afford  full  protection,  then  it  is  the  duty  of  society  to  give  it. 
Especially  is  this  true,  where  a  great  mischief  has  been  done  to  the 
citizen,  marked  by  circumstances  of  peculiar  atrocity,  and  caused  in 


31 

great  part  by  public  negligence.  Without  therefore  seeking  to  dis- 
tinguish this  case  from  others,  in  regard  to  the  strict  principle  of  con- 
tract, we  believe  that  it  is  so  marked  by  great  features  of  the  principle, 
that  there  was  so  striking  a  failure  of  protection,  both  in  law  and  in 
fact,  and  that  the  injury  was  so  cruel  an  outrage  upon  those  living 
innocently  under  what  they  believed  to  be  our  protecting  arm,  that 
reparation  of  their  losses  may  well  adorn  our  magnanimity,  without 
compromising  our  future  justice  to  others. 

Let  us  not  be  misunderstood :  —  and  that  we  may  not  be,  we  state 
again  the  distinction  just  taken.  The  crimes  of  robbery,  theft,  arson, 
and  other  offences  against  property,  are  severely  punished.  Thus  far, 
the  state  discharges  a  part  of  its  duty  of  protection.  It  goes  further; 
the  duty  embraces  the  maintenance  of  police,  strict  and  vigilant  exe- 
cution of  the  laws,  and  certain  punishment  of  the  offender.  These 
duties  are  also  discharged  by  the  state.  In  the  case  of  a  simple 
larceny  of  property,  therefore,  the  state  may  be  said  to  approximate 
very  nearly  to  the  discharge  of  its  whole  duty  of  protection.  The 
punishments  provided  and  the  police  maintained,  are,  generally 
speaking,  adequate  to  the  prevention  of  the  crime.  There  is  no 
striking,  manifest  and  important  omission  of  duty  on  the  part  of  the 
state,  to  which  the  injury  may  wholly  or  in  part  be  traced.  It  is  not 
so  with  the  case  of  riots.  Something  more  than  punishment  of  the 
offender,  or  the  maintenance  of  police,  is  needed  to  insure  adequate 
protection  to  the  citizen.  It  is  so  easy  for  a  whole  community,  at  a 
period  of  excitement,  to  arm  itself  with  a  color  of  right,  and  under  it 
to  bring  ruin  and  desolation  upon  the  objects  of  its  passionate  preju- 
dices ;  it  is  so  nearly  certain  that,  at  such  a  period,  the  magistrate 
who  has  no  other  fear  before  him  than  the  fear  of  the  people,  will  not 
expose  himself  to  the  wrath  of  the  people ;  and  it  is  so  plain  a  pro- 
cess of  arithmetic,  that  when  property  has  been  destroyed,  if  there  is 
no  quarter  from  which  indemnity  may  be  compelled,  none  will  be 
obtained;  —  that  without  special  and  energetic  measures  to  forestal 
these  occurrences,  the  public  duty  cannot  be  said  to  have  been  dis- 
charged. The  commonwealth  of  Massachusetts  has  found  and 
declared  this  to  be  so. 

The  owners  of  the  property  destroyed  on  Mount  Benedict  are  not 
now  before  us,  seeking  a  liquidation  of  their  claims.  They  came 
before  the  legislature  of  1835,  and  after  a  report  made  in  favor  of 
granting  to  them  a  sum  of  money,  they  were  repttlsed.  Since  that 
time,  they  have  wisely  and  properly  abstained  from  preferring  their 
petitions,  waiting,  as  was  due  to  their  injured  rights,  for  a  change  in 
the  views  of  the  state  upon  the  question  involved  in  their  case.  They 
have  left  the  blackened  ruins  of  their  halls,  where  piety,  and  learning, 
and  charity,  and  useful  labor,  dignified  their  peaceful  lives,  standing 
as  they  were  left  by  the  fires  of  the  incendiary,  when  the  torch  could 
find  no  more  to  consume.  They  have  taken  down  no  stone  from  off' 
another,  and  the  only  agent  that  has  yet  been  busy  to  remove  from 
before  us  the  monument  of  our  neglect,  has  been  the  slow,  corroding 
tooth  of  Time,  which  will  remove  it  only  after  the  lapse  of  ages. 
They  have  thus  kept  a  continual  claim  before  the  people  of  Massa- 


32 

chusetts,  upon  their  generous  justice.  They  have  not  spoken,  they 
have  not  written;  but  the  mournful  dignity  of  their  silence,  made 
eloquent  by  this  index  of  their  wrongs,  is  more  touching  and  more 
persuasive,  than  the  most  elaborate  appeals. 

For  the  committee, 

GEORGE  T.  CURTIS, 

Chairman. 


